OACTA Summer Quarterly pmd asbestos attorney washington by mikeholy

VIEWS: 42 PAGES: 44

									 Quarterly Review
Volume 2                                    Issue No. 2                                                           Summer 2009


OHIO ASSOCIATION of CIVIL TRIAL ATTORNEYS
 A Quarterly Review of                      Contents
      Emerging Trends                       President’s Letter ............................................................................... 1
                                                Gretchen Koehler Mote
      In Ohio Case Law                      Introduction: Personal Injury Defense Committee ..................... 2

        and Legislative                         Brian D. Kerns
                                                Jamey T. Pregon

              Activity...                   What Tort Reform Has and Has Not Done
                                            to the Statute of Limitations ............................................................ 3
                                                 Dennis R. Fogarty
                                                 Colby Bryson

                                            What’s Happening So Far in 2009:
                                            Appellate Courts Across Ohio Weigh in on Settlements,
                                            Experts and Discovery Disputes ..................................................... 6
                                               Jamey T. Pregon

                                            What is Admissible under Robinson v. Bates:
                                            The Footnote that Divided the State .............................................. 9
                                                Mark Engling
                                                Christopher Leapley

                                            In Lang, The Open and Obvious Doctrine Withstood
                                            Yet Another Challenge in the Supreme Court.
                                            What’s Next? ..................................................................................... 13
                                                Timothy J. Fitzgerald

                                            Online Social Networking Sites –
                                            A New Tool for Litigators? ............................................................... 16
                                                Mary S. Peterson

                                            Are Tort Claimants Necessary Parties
                                            to Insurance Coverage Dec Actions? ........................................... 20
                                                 Shawn M. Blatt
                        Ohio
                   Association              Medical Lien Subrogation Update ................................................ 25
                   of Civil Trial
OACTA                Attorneys
                                               Patrick S. Corrigan

                                            Ohio Supreme Court: Tort Claims and a New Comity ................ 33
           The Source for Defense Success       Bruce P. Mandel
                                                James N. Kline
                            Ohio
                                                                         Board of Trustees
                       Association              Kurt D. Anderson (2005)                      Michael W. Krumholtz (2006)
                                                Janik, Dorman & Winter, L.L.P.               Bieser, Greer & Landis
                       of Civil Trial
OACTA                    Attorneys
                                                9200 South Hills Boulevard, Suite 300
                                                Cleveland, OH 44147-3521
                                                                                             400 National City Center, 6 N. Main
                                                                                             Dayton, OH 45402
                                                (440) 838-7600 • Fax: (440) 838-7601         (937) 223-3277 • Fax: (937) 223-6339
               The Source for Defense Success   E-mail: kurt.anderson@janiklaw.com           E-mail: mwk@bgllaw.com

                                                Thomas J. Antonini (2007)                    James L. Mann (2009)
                                                Robison, Curphey & O’Connell                 Mann & Preston LLP
                                                Four SeaGate, 9th Floor                      18 E. 2nd Street
                                                Toledo, OH 43604-1520                        Chillicothe, OH 45601-2523
             Officers                           (419) 249-7900 • Fax: (419) 249-7911         (740) 775-2222 • Fax: (740) 775-2627
                                                E-mail: tantonini@rcolaw.com                 E-mail: jmann@horizonview.net
President
Gretchen Koehler Mote                           Kevin Bacon (2008)                           Amy Mass (2007)
Ohio Bar Liability Insurance Co.                Farmers Insurance                            The Hanover Insurance Group
                                                100 E. Campus View Blvd.                     500 South Front Street
1650 Lake Shore Drive., P.O. Box 2708
                                                Columbus, Ohio 43235                         Suite 870
Columbus, OH 43216-2708                         (614) 438-2647                               Columbus, OH 43215
(614) 488-7924 • Fax: (614) 488-7936            E-mail: kbaconohio@yahoo.com                 (614) 222-3061 • Fax: (614) 222-3079
E-mail: gmote@oblic.com                                                                      E-mail: amass@hanover.com
                                                John G. Farnan (2006)
Vice President                                  Weston Hurd LLP                              Mark F. McCarthy (2002)
John M. Hands                                   The Tower at Erieview                        Tucker Ellis & West LLP
Ulmer & Berne, LLP                              1301 East Ninth Street                       1150 Huntington Building
600 Vine Street                                 Suite 1900                                   925 Euclid Avenue
Suite 2800                                      Cleveland, OH 44114-1862                     Cleveland, OH 44115
                                                (216) 241-6602 • Fax: (216) 621-8369         (216) 592-5000 • Fax: (216) 592-5009
Cincinnati, OH 45202
                                                E-mail: JFarnan@westonhurd.com               E-mail: mark.mccarthy@tuckerellis.com
(513) 698-5122 • Fax: (513) 698-5123
E-mail: jhands@ulmer.com                        Richard M. Garner (2008)                     David W. Peck (2006)
                                                Davis & Young, LPA                           Rendigs, Fry, Kiely & Dennis
Secretary                                       1200 Fifth Third Center                      One West Fourth Street
Gary L. Grubler                                 600 Superior Avenue, E.                      Suite 900
Grange Insurance                                Cleveland, OH 44114                          Cincinnati, OH 45202-3688
605 South Front Street                          (216) 348-1700 • Fax: (216) 621-0602         (513) 381-9226 • Fax: (513) 381-9206
Suite 210                                       E-mail: rgarner@davisyoung.com               E-mail: dpeck@rendigs.com
Columbus, OH 43215
                                                John J. Garvey, III (2007)                   Crystal Richie (2006)
(614) 449-5900 • Fax: (614) 449-5980            Freund, Freeze & Arnold                      Gallagher Gams Pryor Tallan & Littrell
E-mail: grublerg@grangeinsurance.com            105 E. Fourth Street                         471 E. Broad Street, 19th Floor
                                                Suite 1400                                   Columbus, OH 43215
Treasurer                                       Cincinnati, OH 45202                         (614) 228-5151 • Fax: (614) 228-0032
Kevin C. Connell                                (513) 587-3907 • Fax: (513) 665-3503         E-mail: crichie@ggptl.com
Freund, Freeze & Arnold                         E-mail: jgarvey@ffalaw.com
One Dayton Centre                                                                            Anne Marie Sferra (2008)
One South Main Street, Ste. 1800                Peter J. Hersha (DRI State Representative)   Bricker & Eckler LLP
Dayton, OH 45402-2017                           Vice President – Trial Division              100 South Third Street
                                                Nationwide                                   Columbus, OH 43215
(937) 222-2424 • Fax: (937) 222-5369
                                                One Nationwide Plaza, 1-24-10                (614) 227-2394 • Fax: (614) 227-2390
E-mail: kconnell@ffalaw.com
                                                Columbus, OH 43215                           E-mail: asferra@bricker.com
                                                (614) 249-6851 • Fax: (614) 249-2515
Immediate Past President                        E-mail: hershap@nationwide.com               (Year indicates first year on board)
Gregory E. O’Brien
Cavitch, Familo, Durkin & Frutkin, Co., LPA     Brian D. Kerns (2008)
1717 East Nineth Street, Fourteenth Floor       State Automobile Mutual Insurance Company    Executive Director
Cleveland, OH 44114-2876                        7123 Pearl Road                              Debbie Nunner, CAE
(216) 621-7860 • Fax: (216) 621-3415            Suite 304                                    OACTA
E-mail: gobrien@cfdf.com                        Middleburg Heights, OH 44130                 17 South High Street, Suite 200
                                                (440) 843-5320 • Fax: (440) 843-5324         Columbus, OH 43215-3458
                                                E-mail: Brian.Kerns@SA-trial.com             (614) 221-1900 • Fax: (614) 221-1989
                                                                                             E-mail: Debbie@AssnOffices.com
                                                James N. Kline (2009)
                                                Ulmer & Berne LLP                            Executive Assistant
                                                Skylight Office Tower                        Cami Collingwood
                                                1660 West 2nd Street                         OACTA
                                                Suite 1100                                   17 South High Street, Suite 200
                                                Cleveland, OH 44113-1448                     Columbus, OH 43215-3458
                                                (216) 583-7000 • Fax: (216) 583-7161         (614) 228-4715 • Fax: (614) 221-1989
                                                E-mail: jkline@ulmer.com                     E-mail: Cami@AssnOffices.com
                                President’s Letter
                                       Gretchen Koehler Mote
                                    Ohio Bar Liability Insurance Co.
                                              July 2009

                    Some of us may remember the days when summer meant things geared down a bit.
                    We certainly haven’t had any “Lazy Days of Summer” at OACTA! This issue of the
                    Quarterly written by members of OACTA’s Personal Injury Defense Committee,
                    chaired by Brian D. Kerns and Jamey T. Pregon, is jam-packed with important
                    articles you’ll want to read to stay current for your pracitce.

                       Medical Lien Subrogation Update by Patrick S. Corrigan is a “must read” article on
                       this topic, complete with checklists of what to do and whom to contact. Timothy J.
Fitzgerald’s article titled In Lang, The Open and Obvious Doctrine Withstood Yet Another Challenge in
the Supreme Court. What’s Next? discusses some of the more recent Ohio Supreme Court decisions
addressing the open and obvious defense, focusing on its most recent opinion in Lang v. Holly Hill
Motel, and looks at what may be ahead.

Shawn M. Blatt addresses Are Tort Claimants Necessary Parties to Insurance Coverage Dec Actions? in
his article informing that the Ohio Supreme Court is now considering the issue in Estate of Heintzelman
v. Air Experts, Inc. While Mark Engling and Christopher Leapley note in What is Admissible under
Robinson v. Bates: the Footnote that Divided the State that the split in Ohio courts will continue until the
Ohio Supreme Court issues a decision reaffirming the admissibility of “write offs” to help a jury
determine the amount of reasonable medical expenses to award a personal injury plaintiff.

Bruce P. Mandel and James N. Kline discuss recent Ohio legislative enactments and corresponding Ohio
Supreme Court rulings, noting DiCenzo v. A-Best Products Company, Inc. (in which the Ohio Supreme
Court ruled that its seminal decision in Temple v. Wean United, Inc. could not be applied retroactively
and effectively undermined the ability of plaintiffs, particularly in asbestos litigation, to sue non-
manufacturer defendants) in Ohio Supreme Court: Tort Claims and a New Comity.

What’s Happening So Far in 2009: Appellate Courts Across Ohio Weigh in on Setttlements, Experts, and
Discovery Disputes by Jamey T. Pregon highlights that while 2009 is half over, appellate courts
throughout Ohio have issued more than a few decisions that deserve our attention. Dennis R. Fogarty
and Colby Bryson inform us What Tort Reform Has and Has Not Done to the Statute of Limitations.

Keeping us all up-to-date with the latest, Mary S. Peterson poses the question Online Social Networking
Sites – A New Tool for Litigators? and discusses how identifying and reviewing a clients, an adversary’s
or even a juror’s SNS page may quickly become a matter of due diligence for all litigators.

Many thanks to all our authors, to our Editor David Peck, and to Molly May for layout and production of
the Summer issue of the Quarterly. I know you’ll find it informative and interesting.
                                    .

Don’t forget to mark your calendar for the OACTA Personal Injury Defense Committee’s seminar
The Art of Personal Injury Defense on Friday, August 28th at State Auto Mutual headquarters in
Columbus and the OACTA Golf Outing to benefit NFJE on Tuesday, September 8th at The Pinnacle Golf
Club in Grove City (greater Columbus area.) I hope to see you at these OACTA events!


                                                     1
                                   Introduction
                         Personal Injury Defense Committee
                                              Brian D. Kerns, Committe Chair
                                                       Kerns and Proe
                                                            and
                                           Jamey T. Pregon, Committee Vice Chair
                                                    Dinkler Pregon LLC

                               The only real constant in the practice of personal injury defense is change. We’ve seen
                              Tort Reform come and go, come and go and come back again. Decisions like Robinson
                              v Bates, Arbino v Johnson & Johnson, Scott-Ponzer and more recently, Lang v Holly Hill,
                              have had far-reaching implications for how we engage in personal injury defense
                              practice in Ohio. With that in mind, OACTA is constantly striving to keep its members
                              current and when possible, one step ahead of new developments in our practice areas.
                              Last year, in an effort to revitalize our association, Past President Greg O’Brien and the
            Brian D. Kerns
                              Board of Trustees implemented significant changes to OACTA committee functions and
                              structure.


                              The publication of this issue of the Quarterly is one product of those changes. Many
                              of the articles here were authored by members of the Personal Injury Defense
                              Committee. Vice-chair, Jamey Pregon and I would like to thank each for their helpful,
                              insightful and entertaining contributions. We invite you to become an active member
                              of this committee.
           Jamey T. Pregon


                              The Personal Injury Defense committee mission statement provides we are:


                   To gather information relevant and important to the attorneys of the Ohio Association of Civil
                   Trial Attorneys, specifically, the attorneys involved in personal injury defense litigation and
                   communicate that information through seminars, scholarly articles and/or transmissions on
                   the world wide web.


          In an effort to fulfill our association’s goal of serving as a resource for personal injury defense
          practitioners around Ohio, we also encourage you to attend the first-ever Personal Injury Defense
          Committee seminar on August 28, 2009. Titled “The Art (and Science) of Personal Injury Defense,” the
          CLE program will be held at the home office of State Automobile Insurance Companies on East Broad
          Street in Columbus, Ohio. The presentations will encompass a wide array of topics; from investigations,
          to medical examinations, to a presentation entitled “How NOT To Lose Your Insurance Company
          Client.” Included in this program will be views from the trial bench, the plaintiff’s bar, experienced
          defense lawyers, claims professionals and a luncheon at the Columbus Museum of Art featuring Justice
          Maureen O’Connor. An agenda for this CLE program is included in this booklet. I encourage you to pre-
          register as our capacity for the seminar will be limited.


                                                                                                 CONTINUED   ON PAGE 40...



Summer 2009 OACTA Quarterly Review                              2
               What Tort Reform Has and Has Not Done
                     to the Statute of Limitations
                                                   Dennis R. Fogarty and Colby Bryson
                                                             Davis & Young


                     Tort reform has always been a highly               2305.10 (LexisNexis 2005). The addition of “accrues”
                     contested and controversial issue in the           provides a much clearer definition than the vague “after the
                     state of Ohio. The state legislature               cause of action occurs” language contained in the previous
                     recently amended numerous pieces of                statutes.
                     tort legislation when it passed Senate
                     Bill 80 (“SB 80”), commonly referred to            However, Ohio law provides exceptions for products liability

Dennis R. Fogarty    as the Tort Reform Act. S.B. 180, 125th            suits in the form of a discovery rule for: 1) plaintiffs exposed
                     Gen. Assem. (2005). In an effort to                to ethical drugs, medical devices, non-specified hazardous
prevent juries from awarding excessive punitive damages                 chemicals, chromium, asbestos, diethylstilbestrol, other
and to promote fairness, the legislature enacted numerous               nonsteroidal synthetic estrogens; and 2) veterans exposed
damage caps. Although these damage caps garner most of                  to herbicides, defoliants, agent orange, and other causative
the public’s attention, the legislature’s recent reform has             agents. The causes of actions that fall under each of these
been highlighted by several amendments to the statutes of               exceptions accrue when either: a) a competent medical
limitations and repose for various torts. The sweeping                  authority informs the plaintiff that his injury is related to
effects of these amended statutes cannot be overlooked, as              exposure or hazardous or toxic chemicals; or b) the date
some have already been challenged in the Ohio Supreme                   that the plaintiff should have known that the injury is related
Court. See Groch v. General Motors Corp (2008), 117 Ohio                to his/her exposure. R.C. 2305.10. Thus, a plethora of
St. 3d 192; 883 N.E.2d 377 (upholding the 10-year statute               plaintiffs now have the ability to file products liability suits
of repose for products liability). These statutory changes              after the two-year limitation that is applied in normal cases.
have considerably restricted plaintiffs in their ability to file
claims and collect damages for certain causes of actions,               The legislature also included a 10-year statute of repose for
while providing additional time and opportunities to file               products liability claims under this recent reform. Pursuant
claims for other causes of actions that they could not have             to this reform, a plaintiff is prohibited from filing a products
pursued previously. Despite the significant changes in                  liability action against a manufacturer or supplier later than
several areas of tort law, the statutes of limitations and              10 years from the date that the product was first placed into
repose for several other tort claims have gone unchanged.               the stream of commerce. If the cause of action accrues less
Given the recent history and current sentiment of the Ohio              than two years prior to the expiration of the 10-year period
legislature, however, the tort landscape may change                     of repose, however, a plaintiff has two additional years from
dramatically once again in the near future.                             when the cause of action accrued to file his/her claim. R.C.
                                                                        2305.10. This statute of repose was challenged in Groch
Products liability cases have arguably been the most                    supra, but the Ohio Supreme Court upheld its
significantly affected by the altered statutes of limitations.          constitutionality; explaining that, “Unlike a true statute of
Although the previous two-year limitation remains, several              limitations, which limits the time in which a plaintiff may
restrictions and specifications have been added to                      bring suit after the cause of action accrues, a statute of
definitively determine when plaintiffs are permitted to                 repose potentially bars a plaintiff’s suit before the cause of
institute a products liability claim. Generally, a plaintiff must       action accrues.” Id. at 211. Therefore, “the constitutionality
file his/her claim within two years after the cause of action           of any specific statute of repose should turn on the
accrues (date of injury or loss). Ohio Rev. Code Ann. §                                                                        CONTINUED...


                                                                    3
particular features of the statute at issue, and such a statute          Although intentional torts committed by employers clearly
should be evaluated narrowly within its specific context.”               overlap and may include bodily injuries, personal property
Id. at 216. When analyzing the statute in the narrow context             injuries, and wrongful death, Ohio law previously imposed a
of products liability, the court thus found the statute of               one-year limitation on employer-related intentional tort
repose constitutional. Thus, the ten-year repose statute                 claims. However, the legislature recently repealed this
restricts the discovery rule exception by prohibiting plaintiffs         statute of limitations in an effort to provide consistency and
from filing products liability claims more than ten years after          logic in its tort legislation. Prior to the official repeal, the
the product was first introduced into the stream of                      Ohio Supreme Court rendered the one-year limitation
commerce. Still, the repose statute has “certain                         ineffective. Funk v. Rent-All Mart, Inc. (2001), 91 Ohio St. 3d
exceptions,” which leaves the door open for special cases                78; 2001 Ohio 270; 742 N.E.2d 127, citing Johnson v. BP
that involve unique circumstances. R.C. 2305.10.                         Chemicals, Inc. (1999), 85 Ohio St. 3d 298, 707 N.E.2d
                                                                         1107 (the enabling statute which permitted the one-year
Wrongful death suits have also been affected by SB 80, as a              statute of limitations (R.C. 2745.01) was unconstitutional).
two-year statute of limitations after the cause of action                As a result of the recent reform, causes of action regarding
accrues (date of injury) now restricts a plaintiff’s suit. R.C.          an employer’s intentional torts now fall under the same two-
2125.02. If the wrongful death suit involves some sort of                year statute of limitations imposed for bodily injury and
product liability, however, the applicable product liability             wrongful death, a significant change that grants plaintiffs an
limitations apply (exceptions in the form of a discovery rule            additional year to file their claims against employers. R.C.
for plaintiffs exposed to aforementioned drugs, statute of               2125.02; R.C. 2305.10.
repose for claims against manufacturer or supplier later
than 10 years from the date the product was first placed                 SB 80 restricted claims regarding defective and unsafe
into the stream of commerce). Thus, plaintiffs may now                   conditions in improvements to new property. Unlike the
pursue wrongful death suits related to products liability that           previous legislation which did not include a statute of
were barred by Ohio’s previous statute of limitations.                   limitations governing these claims and thus allowed a
                                                                         plaintiff to file a claim at any time, the recently enacted
Similarly, the slightly-altered statute of limitations for actions       reform imposes a 10-year statute of repose for
concerning damages for bodily injury or injury to personal               improvements to real property, relative to designer
property has provided plaintiffs a larger window of                      professions, construction contractors, and subcontractors,
opportunity to pursue claims. Although the two-year time                 unless fraud is involved. R.C. 2305.131. Still, it should be
limit remains, the duration is now measured from the date                noted that a claimant who discovers a defective and unsafe
that the cause of action accrues (date of injury), R.C.                  condition of an improvement to real property during the ten-
2305.10, unlike the previous limitation that measured the                year period but less than two years prior to the expiration of
two years from the time that the cause of action arose,                  that period may commence a civil action to recover
which may or may not have been the date of the injury                    damages as described in that division within two years from
occurrence. Additionally, the two-year window may be                     the date of the discovery of that defective and unsafe
extended if the claim involves product liability and/or                  condition. R.C. 2305.10.
eventual wrongful death. In each of those cases, the statute
of limitations for products liability (exceptions in the form of         Despite the significant changes in several types of tort
a discovery rule for plaintiffs exposed to aforementioned                claims, the statutes of limitations for other causes of action
drugs, statute of repose for claims against manufacturer or              remain the same. Breaches of oral and written contracts,
supplier later than 10 years from the date the product was               for example, continue to contain a 15-year and six-year
first placed into the stream of commerce) or wrongful death              statute of limitations, respectively. In the commercial
(two years after the cause of actions accrues (date of                   sector, claims arising under the Consumer Sales Practices
death)) will subsequently apply.                                         Act continue to be restricted by a two-year statute of
                                                                         limitations. R.C. 1345.10.


Summer 2009 OACTA Quarterly Review                                   4
Intentional tort claims have largely gone unchanged as well.
The limitation for assault and battery claims remains one             Dennis Fogarty has been with Davis and Young in
year, while the limitation for assault and battery by a mental        Cleveland since 1991. His practice areas include
health professional; sexual contact or conduct continues to           medical malpractice and insurance casualty
be two years. R.C. 2305.111; R.C. 2305.115. Further,                  defense. He also has experience in complex
intentional acts of sexual abuse or other acts continue to            commercial coverage disputes in the areas of
carry the same one-year statute of limitations for adult              construction, employment and intellectual property.
victims. R.C. 2305.11. The legislature has also maintained
                                                                      He counsels clients in complex litigation matters
the statute of limitations established in Doe v. First United
                                                                      including UM/UIM, products liability and commercial
Methodist Church (1994), 68 Ohio St.3d 531, when the
                                                                      cases. He defends both hospitals and doctors in
victim of intentional sexual abuse or other acts is a minor.
                                                                      malpractice litigation.
Pursuant to Doe, a minor has one year from the age of the
majority where the victim knows the identity of the
perpetrator and is fully aware a battery has occurred to file a
                                                                      Colby Bryson in a second-year law student at Case
claim. Additionally, the four-year statute of limitations for
                                                                      Western Reserve University and a Summer
trespass, recovery of personal property, conversion, fraud
                                                                      Associate at Davis & Young.
and other torts not covered by R.C. 2305.10 to R.C.
2305.12 remains unchanged. And rounding outing the
unchanged statutes of limitations for intentional torts is the
one-year window to file libel, slander, malicious prosecution,
false imprisonment, and abuse of process claims. R.C.
2305.11.


Although the legislature has instituted several somewhat
complicated damage caps regarding malpractice claims, the
statute of limitations for these causes of action have also
gone unchanged. Pursuant to R.C. 2305.11, plaintiffs are
given one year to file malpractice claims against lawyers,
psychologists, social workers, or clinical counselors. A
similar one-year statute of limitations exists for medical
malpractice claims; but this limitation is subject to a 180-
day extension.


The passing of Senate Bill 80 marked the state’s first
                                                                                Visit the
significant tort reform legislation in several years. The                   OACTA website
amended statutes of limitations and repose have vastly
altered the tort claims landscape, restricting numerous                   for information on
claims while expanding the opportunity to file several others.
Still, several statutes of limitations and repose for several              OACTA seminars
other tort actions have gone unchanged. Given the current
sentiment of the legislature, however, these statutes may
                                                                            and activities:
change in the near future if the circumstances call for such
reform.

                                                                      www.OACTA.com
                                                                  5
                    What’s Happening So Far in 2009:
              Appellate Courts Across Ohio Weigh in on Settlements,
                         Experts and Discovery Disputes
                                                            Jamey T. Pregon
                                                           Dinkler Pregon LLC


                     The year is half over, and appellate              attorney did not have apparent authority to settle the case.
                     courts across Ohio have issued more               While attorneys have apparent authority to negotiate on
                     than a few decisions that should get              behalf of their clients, the Court held that attorneys do not
                     the attention of personal injury                  have apparent authority to enter into settlements on behalf
                     defense attorneys. Several of these               of their clients. The defendant in Adkins unsuccessfully
                     decisions have come in three key                  sought review with the Ohio Supreme Court.
                     areas: (1) settlement of cases, (2)
expert testimony, and (3) discovery of medical records and                 2. What if the Plaintiff stiffs you on a
related materials. As the age old warning goes, “be careful            subrogation lien? In the Fifth District, you cannot go to
out there.”                                                            the trial court and ask for the settlement to be enforced. In
                                                                       McDougal v. Ditmore, 2009-Ohio-2019, Start App. No. 2008
I.   Settlement Issues                                                 CA 00043, the Fifth District held that a trial court no longer
     1. When is a settlement not a settlement? In                      has jurisdiction to decide a motion to enforce a settlement
Adkins v. Estate of Place, 2009-Ohio-526, Clark App. No.               once a dismissal entry with prejudice is filed. The plaintiff,
08-CA-73, the Second Appellate District framed the issue               by the terms of a settlement agreement with the tortfeasor,
presented in that case as follows: “One might think that an            agreed to pay a subrogation lien out of the settlement
attorney retained to represent a client in connection with a           proceeds. When the plaintiff failed to do so, the tortfeasor
matter in litigation would have apparent authority to settle           moved to enforce the settlement, and the trial court granted
that matter on behalf of the client, but the rule in Ohio is           the motion.
clearly otherwise.” In Adkins, the plaintiff’s attorney
communicated a settlement offer to his client, and then                The Fifth District reversed, holding that unless the dismissal
received a message from the client stating to “go ahead                entry indicates the trial court reserves limited jurisdiction to
with it.” Following the message, the plaintiff’s attorney              decide matters related to a voluntary settlement agreement.
advised defense counsel the settlement offer was                       This may signal that state courts are following the trend in
accepted, and the trial court was contacted and advised                Federal courts. See, e.g., Kokkonen v. Guardian Life Ins. Co.
the case was settled. Later that day, the plaintiff’s attorney         of America, 511 U.S. 375, 381, 114 S. Ct. 1673, 128 L. Ed.
was told by his client that he did not mean to take the                2d 391 (1994); Chao v. Am. Nat’l Fleet Servs., 2008 U.S.
settlement offer, but instead, to “go ahead with” the trial            Dist. LEXIS 51244 (N.D. Ohio 2008). In any event, the
deposition of plaintiff’s treating chiropractor.                       safest course of action is to include language in your
                                                                       dismissal entry that permits the trial court to retain
The trial court refused to reactivate the case, and ordered            jurisdiction over the enforcement of the parties’ settlement
that the settlement be enforced. The Second District                   agreement.
reversed the trial court, and remanded the case for an
evidentiary hearing on whether the plaintiff’s attorney had            II. Expert Witnesses
actual authority from his client to settle the case.                       1. Can you ask the plaintiff’s medical expert
However, the Second District held that the plaintiff’s                 “possibility” questions on cross-examination? The


Summer 2009 OACTA Quarterly Review                                 6
answer to this question is that it depends on why you are            While the doctor’s suspension was fair game on cross-
asking the question. The Tenth District, in Bruce v. Junghun,        examination to attack the doctor’s credibility, the
2009-Ohio-2151, Franklin App. No. 08AP-837, recognized               suspension did not disqualify the doctor as an expert
that cross-examination may use “possibility” evidence to             witness for the plaintiff.
“chip away” the plaintiff’s case, but defense counsel cannot
use the plaintiff’s expert to express an opinion on an                   3. What if you have no expert to contradict the
alternative cause theory based solely upon “possibility”             plaintiff’s expert on causation? In Decapua v. Rychlik,
evidence.                                                            2009-Ohio-2029, Cuyahoga App. No. 91189, the Eighth
                                                                     District was presented with a case where the defense
In Junghun, defense counsel asked plaintiff’s treating doctor        presented no expert testimony to challenge the plaintiff’s
if he could rule out defense counsel’s alternative cause             expert testimony regarding the relatedness of the plaintiff’s
theory, which was the plaintiff’s age and level of activity          medical treatment and bills. The jury still awarded the
caused degeneration in the plaintiff’s shoulder, rather than         plaintiff less than his medical specials, and the plaintiff
the automobile accident, and the doctor stated he could not          appealed, arguing the award was against the manifest
rule those theories out. The trial court excluded this               weight of the evidence in that the plaintiff presented
testimony, holding that this was an opinion that must be             uncontroverted expert testimony as to the proximate cause
stated in terms of a reasonable degree of medical                    of the plaintiff’s injury and treatment.
probability. The Tenth District agreed, and affirmed the
exclusion of the doctor’s testimony.                                 The Eighth District rejected the plaintiff’s argument, holding
                                                                     that “‘simply because plaintiff’s expert testified that the
     2. Does the plaintiff’s doctor still qualify as an              billings were necessitated by the accident, they are not
expert at trial if the doctor’s license has been                     automatically entitled to prevail on the question of
suspended? The Second District said that a plaintiff’s               necessity, even where their expert’s testimony on that point
doctor may still give expert testimony at trial so long as the       is not directly controverted by defendant’s evidence, so long
doctor was licensed at the time the doctor treated the               as there appear in the record objectively discernible reasons
Plaintiff. In Ray v. Ramada Inn North, 2009-Ohio-1278,               upon which the jury could rely to reject the expert’s opinion
Montgomery App. No. 22808, the plaintiff’s treating doctor           testimony.” The Court noted that two other appellate
was convicted of False Statements Relating to Health Care            districts—the Tenth and the Second—have reached the same
Matters, in violation of 18 U.S.C. §1035, and his medical            conclusion. See Walker v. Holland, 117 Ohio App.3d 775
license was suspended for two years. Defendant argued                (1997); McBride v. Quebe, 2006-Ohio-5128, 2d Dist. No.
that the doctor was not qualified to testify as an expert at         21310.
trial, relying upon O.R.C. §2743.43, which applies to
medical malpractice claims. The trial court agreed, and              III. Medical Discovery
precluded the plaintiff’s doctor from giving expert testimony            1. Can you get all of the plaintiff’s prior medical
at trial.                                                            records in discovery? The answer to this question lies in
                                                                     the discretion of the presiding trial court. In Cargile v.
The Second District reversed the trial court, holding that           Barrow, 2009-Ohio-371, Hamilton App. C-080423, the First
Evidence Rule 702 governed the admissibility of expert               District reversed a trial court’s order compelling a plaintiff to
testimony, rather than O.R.C. §2743.43. The Court noted              sign authorizations for all medical providers prior to the
that a witness need not have a special certification or              plaintiff’s automobile accident. The plaintiff had objected
license in order to qualify as an expert so long as the              based upon the physician-patient privilege, and argued that
knowledge the witness imparts will aid the trier-of-fact in          the requested records had nothing to do with the plaintiff’s
understanding the evidence or determining a fact in issue.           personal injury claim.
                                                                                                                             CONTINUED


                                                                 7
The First District followed the Ohio Supreme Court’s decision         against the defendant, “the blood test results…would not fit
in Peyko v. Frederick, 25 Ohio St.3d 164 (1986), and                  the exception to the privilege in the instant case, since this
ordered that the challenged medical records are subject to            is a civil matter.” The plaintiff presented the trial court with
an in camera inspection by the trial court to determine               evidence that the blood test was not ordered by law
whether the records are discoverable. The Court noted that            enforcement. Citing this evidence, the Eleventh District
“although Peyko was about attorney-client privilege in a case         reasoned that “Since the instant matter is a civil case and
involving insurance claims, it is instructive here.”                  the evidence the Sullivans are seeking appears to have
                                                                      been obtained for the purpose of medical treatment or
The Eighth District reached the same conclusion in Wooten             diagnosis, both the records and the results of the blood test
v. Westfield Ins. Co., 2009-Ohio-494, Cuyahoga App. No.               are protected as a privileged communication pursuant to
91447. The Eighth District reversed a trial court’s decision          R.C. 2317.02 and thus not subject to discovery under the
denying the plaintiff’s motion for a protective order regarding       civil rules.”
the defendant’s request to obtain all of the plaintiff’s prior
medical and pharmaceutical records. Although the Court                The Eleventh District declined to announce a bright line rule
noted that “the physician-patient privilege does not apply            on this issue, and ordered the case back to the trial court on
when the patient files a civil action putting her physical or         remand to conduct an evidentiary hearing, accept
mental condition at issue,” the Court further noted that this         stipulations from the parties, or conduct an in-camera
exception to the privilege only applies to prior treatment that       review of the requested information to determine whether
is “related causally or historically to physical or mental            the totality of the circumstances surrounding the
injuries that are relevant to issues in the medical claim.”           administration of Smith’s blood-alcohol test warrants the
The Court remanded the case to the trial court with the               application of the privilege.
instruction to conduct an in camera inspection of the
requested records.


    2. Is your client’s blood alcohol test
discoverable? In most cases, the answer will be no,                       Jamey T. Pregon is a partner in the Dayton law firm
according to the Eleventh District in Sullivan v. Smith, 2009-            of Dinkler Pregon LLC, and the vice chair of the
Ohio-289, Lake App. No. 2008-L-107. The plaintiff claimed                 Personal Injury Defense Committee. His practice
personal injuries from an automobile accident, and the                    focuses on litigation at all stages, including trial and
defendant had been charged with a DUI following the                       appellate work, and focuses on personal injury
accident. The Eleventh District noted that the physician-                 defense, insurance coverage and bad faith, premises
patient privilege is not applicable in any criminal action                liability, governmental liability, employment law, and
concerning any test or the results of any test that determines            civil rights defense. He is a member of the Ohio
the presence or concentration of alcohol or any other                     Association of Civil Trial Attorneys, Defense Research
controlled substance. The defendant refused to provide an                 Institute, the Ohio State Bar Association, and the
authorization for the blood alcohol test conducted at the                 Dayton Bar Association.
emergency room following the automobile accident, and the
plaintiff moved to compel the defendant to sign an
authorization. The trial court ordered the defendant to sign
the authorization.


The Eleventh District reversed the trial court’s order. The
Court noted that if the blood test was taken at the direction
of law enforcement for the purposes of criminal proceedings


Summer 2009 OACTA Quarterly Review                                8
                  What is Admissible under Robinson v. Bates:
                   The Footnote that Divided the State
                                                    Mark Engling and Christopher Leapley
                                                          Freund, Freeze & Arnold


                      In Ohio, a handful of Supreme Court                   In Robinson, the Supreme Court ruled that the reasonable
                      decisions invoke immediate recognition                value of medical services rendered may be “the amount
                      amongst personal injury defense                       originally billed, the amount the medical provider accepted
                      attorneys regarding the legal debates                 as payment, or some amount in between.”8 The court
                      they commenced or resolved – Sheward,                 further held that “any difference between the original
                      Scott-Pontzer, Galatis, Armstrong v. Best             amount of a medical bill and the amount accepted as the
  Mark Engling        Buy, Fidelholtz. Another decision from                bill’s full payment is not a ‘benefit’ under the collateral-
                      Ohio’s highest court can now be added to              source rule because it is not a payment, but both the original
                      that list, not for its holding (which is fairly       bill and the amount accepted are evidence relevant to the
                      clear), but for the seemingly unintended              reasonable value of medical expenses.’”9
                      debate now playing out in Ohio’s trial and
                      appellate courts over one of its                      On its face, the Robinson decision does not appear to leave
                      footnotes. Indeed, footnote 1 of the                  room for argument. The Court expressly found that write-
                      Robinson v. Bates decision is the
                                           1
                                                                            offs are not benefits, and are not excluded by the collateral
                      hairline scratch that has ultimately split            source rule. Thus, an amended collateral source statute
Christopher Leapley
                      Ohio courts into two profoundly different             would seemingly be irrelevant to the “reasonable medical
                      camps. This divide will continue until the            expenses” analysis.
Supreme Court issues another immediately recognizable
decision reaffirming the admissibility of “write offs” to help a            A single footnote, used by the Supreme Court to explain why
jury determine the amount of reasonable medical expenses                    the Court did not address a recently-enacted statute in its
to award a personal injury plaintiff.                                       decision, led to plaintiffs lawyers all over the state
                                                                            questioning the admissibility of write-offs at trial. Footnote 1
In Ohio a plaintiff who suffers injuries caused by a tortfeasor             of the Robinson decision states in pertinent part:
may recover the reasonable value of his medical treatment.          2
                                                                                     “We note that, effective April 7, 2005, the
Until recently, just how this reasonable value was to be                             General Assembly passed R.C. 2315.20, a
determined was not in question. Injured parties were                                 statute titled ‘Introduction of collateral
permitted to admit evidence of their medical bills, which                            benefits in tort actions.’ The purpose of
was presumed to be prima facie evidence of                                           this statute was to set forth Ohio’s
reasonableness.3 Defendants would then offer evidence                                statement of law on the collateral-source
intending to refute this presumption and establish that the                          rule. The new collateral-benefits statute
medical costs billed were neither reasonable nor                                     does not apply in this case, however,
necessary. Evidence of reduced amounts accepted as
            4
                                                                                     because it became effective after the
payment would be one such example of this evidence.           5
                                                                                     cause of action accrued and after the
Robinson v. Bates addressed the issue of whether evidence                            complaint was filed.”10
of medical “write-offs” is admissible to establish the
reasonable value of medical treatments rendered,6 and                       It should be noted that nowhere in the Robinson decision
whether such evidence runs contrary to the “collateral                      does the Court state their ruling would be any different if the
source rule.”7                                                              statute were in effect at the time the cause of action
                                                                                                                                     CONTINUED


                                                                        9
accrued. Despite this, many plaintiffs have latched onto                  As mentioned above, the majority of jurisdictions
this footnote arguing that the Court, by implication, found               considering this issue have ruled that “write-offs” constitute
that after the effective date for R.C. 2315.20, evidence of               valid and admissible evidence to establish the reasonable
write-offs became inadmissible with respect to the                        value of medical services rendered. These counties, in
reasonable value of an injured plaintiff’s medical expenses.              alphabetic order, are13: Ashland14, Athens15, Erie16,
Although many Ohio courts have still not addressed the                    Fairfield17*, Franklin18*, Hamilton19, Licking20*, Lucas21*,
issue, those that have are split on the question of whether               Mahoning22, Montgomery23, Stark24, Summit25, Williams26
the write-off amount is admissible. As discussed below,                   and Wood27. In addition to these counties, Ohio’s Tenth
however, the majority of decisions on the issue line up on                District, as well as the Northern and Southern District Courts
the fault line in favor of “write off” admissibility.                     have ruled that evidence of write-offs are admissible.
                                                                          Perhaps the most cited case on this subject is the Northern
Plaintiffs primarily focus on the footnote’s language. They               District of Ohio’s recent decision of Schlegel v. Li Chen
argue the Court’s ruling would have been different had the                Song.28 In Schlegel¸ the plaintiff argued that Robinson had
statute been in effect. The argument evolves into a claim                 been superseded “because [R.C. 2315.20] became
that R.C. 2315.20 supersedes the Robinson decision on the                 effective after the cause of action accrued [in
admissibility of write-offs. Plaintiffs largely ignore the Court’s        Robinson]…”.29 The Federal Court rejected this argument,
holding that write-offs are not benefits, and instead focus on            stating that “even if Robinson did not apply to the case at
the fact the insurers who have paid these benefits are                    bar, [R.C. 2315.20] certainly applies, and the Robinson
afforded subrogation rights. Therefore, as the argument                   Court acknowledged that once the statute became effective
goes, R.C. 2315.20 precludes evidence of write-offs.                      the rule would be become even more limited than as
                                                                          applied by that court.”3031
Defendants on the other hand, argue that R.C. 2315.20 only
applies to those benefits payable to the plaintiff, and that              The Court of Appeals for Ohio’s Tenth District recently ruled
write-offs, according to the express holding in Robinson, are             in line with Schlegel.32 . The court based its ruling on the
not paid. Defendants also give the footnote its due                       rationale contained in Shlegel and Robinson that there is a
consideration, arguing it was included by the Supreme Court               lack of “benefit received by the plaintiff” as a result of the
as an explanation as to why it did not address the newly-                 write-off amounts.33
enacted statute. Defendants usually point out the
undeniable fact that there is no statement in Robinson that               As noted above, many of Ohio’s common pleas courts have
the Supreme Court would have decided the issue differently                also ruled that evidence of write-offs are admissible at trial.
had the statute been applied to the case.                                 Two such courts are Erie County and Hamilton County. The
                                                                          Erie County Common Pleas Court stated: “the Supreme
To date, no fewer than twenty Ohio common pleas courts                    Court held [in Robinson] that the ‘write-off’ is not a collateral
have considered this issue. In addition, two state appellate              source ‘benefit’ [therefore] R.C. 2315.20 is still inapplicable
courts, and the Federal Court for the Northern District of                because the ‘write off is not a collateral source benefit.’”34
Ohio have also weighed in. Of these courts, at least fourteen             Likewise, Hamilton County’s Common Pleas Court ruled:
trial courts ruled that evidence of write-offs is admissible,
            11
                                                                          “amounts written off by medical care providers are not
along with the 10th District Court of Appeals and the                     subject to the collateral source rule.”35
Northern District of Ohio. On the other hand, eleven trial
courts12 and the Sixth District Court of Appeals ruled that               The Williams County Common Pleas Court also considered
such evidence was inadmissible. At the time of this writing,              the application of R.C. 2315.20 to the admissibility of write-
the authors were not aware of any cases pending before the                offs at trial. The Court ruled: “R.C. 2315.20 does not repeal
Ohio Supreme Court or any other state appellate courts                    Ohio’s common law collateral source rule; it simply limits [its
regarding this issue.                                                     application] where the Plaintiff’s insurer is subrogated.”36
                                                                          The court ultimately ruled that the rationale found in


Summer 2009 OACTA Quarterly Review                                   10
Robinson as to why the collateral source rule does not apply            source rule is controlled by RC. 2315.20, and not by the rule
to write offs applies to all forms of the collateral source             set forth in [Robinson].”52
rule.37 As a result, the court reasoned that RC. 2315.20
does not apply to the writen-off portion of bills because the           A Lucas County court also ruled that R.C. 2315.20
write offs are expenses that were never paid, and hence not             supersedes the Robinson decision.53 The court stated: “the
a benefit.                                                              cause of action…accrued after the effective date of R.C.
                                                                        2315.20. Therefore, it is the statute, rather than the Court’s
Montgomery County also recently weighed in on the issue.                decision in Robinson, that applies.”54
Judge Michael Tucker ruled that the plaintiff is “entitled to
recover from the tortfeasor the reasonable and necessary                Although most of the other decisions excluding the
medical expenses incurred.”38 Judge Tucker reasoned that                admission of evidence of write-offs follow the same
the amount written off does not constitute a collateral                 rationale, there are a couple decisions that adopted differing

benefit and therefore is not affected whatsoever by RC.                 views that are worth noting.

2315.20.
                                                                        Another decision from Lucas County found that write-offs are
                                                                        in fact “paid.”55. The court stated: “[a]fter careful
These cases emphasize the majority law in Ohio that
                                                                        consideration, this Court finds that the difference in the
because a write-off is a portion of the bill which is never
                                                                        amount billed and the amount accepted, the ‘write-off,’ is
paid, it does not constitute a benefit. As such, it is not
                                                                        paid by insurance companies through negations with
governed by the collateral source rule, and R.C. 2315.20
                                                                        medical providers…”56 This appears to be the beginning of a
has no effect on its admissibility. Under the majority of
                                                                        new line of authority questioning the Supreme Court’s
jurisdictions in Ohio, a plaintiff is entitled to receive that
                                                                        holding that write-offs do not constitute the payment of a
amount of money representing the reasonable value of his
                                                                        benefit.
medical treatment. What a plaintiff is not entitled to receive
is a windfall simply because his insurance company chooses
                                                                        The Lorain County Common Pleas Court offered another line
to negotiate a lower final payment. Defense attorneys                   of reasoning when it ruled that evidence of write-offs should
should, nonetheless, be careful out there since the                     not be admitted in the interest of judicial efficiency.57 The
“majority” position would hold little to no persuasive effect           court stated: “[s]ince Robinson v. Bates, the courts and
in the “minority” jurisdictions and only provide guidance in            litigants have seen the practical effects of the ruling.
those jurisdictions that have not addressed the issue.                  Additional time and resources are spent on gathering the
The split in authority on this topic is demonstrated by the             records, trying to decipher payments [etc.]…This extra paper
more than eleven trial courts that have come down on the                work for the litigants, the providers, and the courts seems to
opposite side of this debate. These jurisdictions are located           create a potential for confusion in the courtroom with an
primarily in the northern half of the state, and include the            inordinate amount of time spent on these issues…”.58 This
common pleas courts in the counties of: Cuyahoga39;                     decision only permit the jury to see the plaintiff’s original
Fairfield *, Franklin *, Fulton , Lake , Licking *,
            40         41          42        43          44
                                                                        medical bills if it would simplify discovery and the issues
Lorain , Lucas *, Seneca , Stark *, Summit *.
       45        46           47        48          49                  at trial.


Additionally, the Court of Appeals for Ohio’s Sixth District has        The cases cited above are intended to serve as examples of
also lined up on the opposite side of the fault line.    50             some arguments and the resulting rulings that arose from a
                                                                        debate spawned by one footnote. Until the Supreme Court
The Sixth District reasoned that R.C. 2315.20 supersedes                decides to clarify the relationship between the Robinson
the Robinson decision.51 The court stated: “[i]t is                     decision and R.C. 2315.20, the debate will continue and the
undisputed that this case arose after the enactment of R.C.             split may widen.59

2315.20 … Accordingly, the application of the collateral                                                                        CONTINUED


                                                                   11
Endnotes                                                                         35
                                                                                      Hatfield v. Berry, (July 16, 2008), Hamilton County Case No
1
     Robinson v. Bates, 112 Ohio St.3d 17.                                            A-0802688.
2
     Id. at 19.
                                                                                 36
                                                                                      Thomas v. Singer (June 31, 2007) Williams County Case No. 06
3
     Id.; RC. 2317.421.                                                               – CI – 21
4
     Id. 20
                                                                                 37
                                                                                      Id.
5
     Id. 22
                                                                                 38
                                                                                      Hudson v. State Farm (August 7, 2008) Montgomery County Case
6
     The difference between the amount originally billed by the                       No. 2007-CV-9278.
     medical provider and the amount ultimately accepted as “payment
                                                                                 39
                                                                                      Multiple rulings, including Gati v. Moore (September 3, 2008),
     in full” is known as the “write-off” amount. Id. at 22.                          Case No: 07-CV-652662; Samano v. Suleiman (September 4,
7
     The collateral source rule was established in Ohio in Pryor v.                   2008), CI-07-644144.
     Webber and prevents a jury from learning of payments made to a
                                                                                 40
                                                                                      Caudill v. Lemaster (October 8, 2008), Case No: 07-CV-847
     plaintiff from a source other than the tortfeasor in determining
                                                                                 41
                                                                                      Attard v. Williamson (June 18, 2008), Case No: 07-CV-257
     plaintiff’s recovery.
                                                                                 42
                                                                                      Clausen v. Lester (November 11, 2007), Case No: 06-CV-268
8
     Robinson v. Bates, at 23.
                                                                                 43
                                                                                      Unreported case decided by Judge Collins (copy available upon
9
     Id.                                                                              request)
10
     R.C. 2315.20 reads: “(A)In any tort action, the defendant may
                                                                                 44
                                                                                      Decision by Judge Spahr in Hudnall case (Case Number unknown)
     introduce evidence of any amount payable as a benefit to the
                                                                                 45
                                                                                      Rivera v. Urbansky (June 26, 2008), Case No: 08-CV-154436
     plaintiff as a result of the damages that result from any injury,
                                                                                 46
                                                                                      Chang v. Uzunel (March 13, 2008), CI-07-03625
     death or loss of person or property that is the subject of the claim
                                                                                 47
                                                                                      Rivers v. Miller (April 29, 2009) Case No: 08 CV 0396
     upon which the action is based, except if the source of collateral
                                                                                 48
                                                                                      Stewart v. Fitness Quest (June 27, 2007), Case No: 07-CV-223
     benefits has a mandatory self-effectuating federal right of
                                                                                 49
                                                                                      Bender v. Waste Management of Ohio (April 30, 2008), CV-07-09-
     subrogation, a contractual right of subrogation or if the source                 6769
     pays the plaintiff a benefit that is in the form of a life insurance
                                                                                 50
                                                                                      Jacques v. Manton (March 20, 2009), Case No: L-08-1096.
     payment or disability payment…”
                                                                                 51
                                                                                      Id.
11
     In addition to the jurisdictions cited, the authors are aware of
                                                                                 52
                                                                                      Id. at 3.
     several additional jurisdictions which have ruled orally or with an
                                                                                 53
                                                                                      Palm v. Beirmeister (July 31, 2007) Lucas County Case No. CI
     unpublished opinion on this issue. For the sake of accuracy, the                 – 06 – 3579.
     authors have not listed any courts that were not verified by first-
                                                                                 54
                                                                                      Id.
     hand evidence. As a result, some jurisdictions which have to date
                                                                                 55
                                                                                      Goney v. Hill Lucas County Case No: CI-06-5002
     only issued oral decisions or unwritten entries are not included in
                                                                                 56
                                                                                      Id.
     this list.
                                                                                 57
                                                                                      Rivera v. Urbansky Lorain County Case No: 08-CV-154436.
12
     See n.11
                                                                                 58
                                                                                      Id.
13
     An * by a county’s name indicates that the county in question has
                                                                                 59
                                                                                      At the time of the writing of this article, the authors were not aware
     had rulings go both directions regarding this issue since the                    of any cases related to this issue pending before the Ohio
     effective date of R.C. 2315.20. Further note that while every                    Supreme Court.
     attempt has been made to identify unreported cases, it was at
     times necessary to provide only as much information as could be
     located in a reasonable effort.
14
     Unreported decision issued by Judge Woodward. (copy available
     upon request)
15
     Bauder v. Porter (May 2, 2008), Athens County Case No: 07 CI
     0219.                                                                              Mark Engling is a civil litigation associate in the
16
     Hockenberry v. Platt (2006) Erie County Case No: 2006 CV 0386
17
     Unreported decision issued by Judge Martin. (copy available upon                   Dayton office of Freund Freeze & Arnold. His
     request)
18
     Kalinoski v. Strapp (2007) Franklin County Case No: 2007 CV
                                                                                        practice involves construction law; real estate broker
     005259.                                                                            malpractice; insurance bad faith and coverage;
19
     Hatfield v. Berry: July 16, 2008, Hamilton County Case No A-
     0802688.                                                                           premises liability; and state and federal consumer
20
     Unreported decision in Morris case by Judge Marcelain. (copy
     available upon request)
                                                                                        protection laws. He has represented clients in state
21
     Multiple cases, including: Brisbane v. Gattett, Case No: CI -07-                   and federal courts, and the Ohio Civil Rights
     3455; Vogelsang v. Pope, Case No: CI-06-4195.
22
     Unreported decisions from both judges Kirchbaum and Durkin.                        Commission. Mark is a member of the Ohio State
     (copies available upon request)
23
     Hudson v. State Farm, (August 7, 2008) Montgomery County Case
                                                                                        and Dayton Bar Associations.
     No. 2007-CV-9278.
24
     Multiple decisions, including: Knight v. Hunt (December 6, 2007)
     Case No: 2007 – CV – 03059.
25
     Diblasi v. Mitchell (July 16, 2008) Case No: CV 07 06 4183
26
     Thomas v. Singer (January 31, 2007) Case No: 06 – CI – 21.
                                                                                        Christopher Leapley is an associate in the Dayton
27
     Sondergeld decision, by Judge Pollex. (copy available upon                         office of Freund Freeze & Arnold where he practices
     request)
28
     (2008) 547 F.Supp.2d 792                                                           various forms of insurance defense. Mr. Leapley is a
29
     Id. at 799
30
     Id. (first emphasis added, second in original).
                                                                                        2008 graduate of the University of Dayton School of
31
     See also Bransteter v. Moore (2009), 2009 WL 152317 (N.D. Ohio).                   Law where he was a member of the Law Review,
32
     See Salvatore v. Findlay (2008), 2008 WL 2588547
33
     Id. at 4.                                                                          and a 2004 graduate of Wright State University.
34
     Hockenberry v. Piatt, (2006) 2006 – CV –386 (unreported)
     (emphases added).




Summer 2009 OACTA Quarterly Review                                          12
  In Lang, The Open and Obvious Doctrine Withstood
     Yet Another Challenge in the Supreme Court.
                     What’s Next?
                                                          Timothy J. Fitzgerald
                                                            Gallagher Sharp


                     The open and obvious doctrine is one of                When hazardous conditions are open and obvious, property
                     the long-standing and most effective                   owners owe no duty to protect invitees from the dangers
                     legal principles in a defense attorney’s               because they are “known to such invitee or are so obvious
                     arsenal to secure a quick dismissal of a               and apparent to such invitee that he may reasonably be
                     premises liability lawsuit. Challenges to              expected to discover them and protect himself against
                     the open and obvious doctrine have met                 them.”9 The open and obvious doctrine “obviates the duty to
                     with some limited success over the                     warn and acts as a complete bar to any negligence claims”
years as courts have recognized certain exceptions to the                   because “‘the owner or occupier may reasonably expect that
doctrine that oftentimes are used to defeat a premises                      persons entering the premises will discover those dangers
owner or occupier’s summary judgment motion. Despite  1
                                                                            and take appropriate measures to protect themselves.’”10
repeated and ongoing efforts by the plaintiff’s bar to bring                Whether a hazard is an open and obvious condition is a
about the abolition of the open and obvious doctrine, the                   matter of law to be determined by the court making it
Supreme Court of Ohio has been steadfast in holding that                    perfectly suited as a proper basis for summary judgment.11
the open and obvious doctrine remains viable as the law in
Ohio.2 Yet, there are chinks in the doctrine’s armor. This                  An early challenge to the doctrine followed on the heels of
article takes a look at some of the more recent Ohio                        Ohio’s adoption of the comparative negligence statute. In
Supreme Court decisions addressing the open and obvious                     the wake of that change in Ohio law, some courts found the
defense, focusing on its most recent opinion in Lang v. Holly               open and obvious doctrine had been abrogated by the
Hill Motel, and takes a brief look at what may be coming in
               3
                                                                            comparative negligence analysis, but the Supreme Court has
the near future.                                                            made it abundantly clear that the doctrine is not concerned
                                                                            with evaluating the plaintiff’s own negligence or looking at
A common law premises liability action can be maintained                    what was the proximate cause for the fall.12 However, the
only if a plaintiff establishes the existence of a legal duty, a            open and obvious doctrine is a defense available only to
breach of that duty, and that the plaintiff’s injuries were                 owners and occupiers of premises. It does not afford a
proximately caused by the breach of that duty. The legal
                                                  4
                                                                            defense to contractors or property managers who create a
status of a person injured on real property determines the                  dangerous condition or fail to remedy a hazard on the
scope and extent of the owner’s duty to the injured person.        5
                                                                            property.13 The open and obvious doctrine does not
Generally, a property owner owes an invitee a duty of                       abrogate a landlord’s statutory duty to keep leased premises
ordinary care to maintain the premises in a reasonably safe                 in a fit and habitable condition.14
condition and to warn of hidden defects and dangers.6 But,
the open and obvious doctrine obviates the duty to warn and                 In the past couple of years, the Supreme Court has been
acts as a complete bar to any negligence claims. When 7
                                                                            asked to abolish the open and obvious doctrine when the
applicable, the open and obvious doctrine provides that the                 hazardous condition amounts to a violation of an
owner of a premises owes no duty to persons entering the                    administrative rule or regulation. The first couple of cases to
premises regarding those dangers that are open and                          reach the Supreme Court on this issue were never decided
obvious.   8
                                                                                                                                 CONTINUED


                                                                       13
being dismissed as having been improvidently allowed                    dangerous and that the landowner breached its duty of care,
because of deficiencies in the record.   15
                                              Which brings us to        “the violation is mere evidence of negligence, and does not
Lang v. Holly Hill Motel.                                               raise an irrebuttable presumption of it. As is the case with
                                                                        all other methods of proving negligence, the defendant may
In Lang, the Supreme Court held that when an invitee on a               challenge the plaintiff’s case with applicable defenses, such
defendant’s property is injured by a hazardous condition that           as the open-and-obvious doctrine. The plaintiff can avoid
constitutes a violation of the Ohio Basic Building Code, the            such defenses only with a per se finding of negligence, which
property owner may assert that the hazardous condition was              we declined to extend to this context in Chambers.”18 The
open and obvious, and that the owner therefore had no legal             Court left open the possibility that there could be
duty to warn or protect the invitee against it. Albert Lang,            circumstances in which a dangerous condition created by a
who suffered from emphysema and carried a portable                      Building Code violation is not open and obvious.19 The
oxygen tank, fell while his wife was helping him ascend a               Court noted that property owners who violate the building
two-step stairway in front of the couple’s motel room. As a             code still face statutory penalties, including injunctions,
result of his fall, Mr. Lang suffered a broken hip that required        fines, and criminal sanctions, that serve as disincentives for
his hospitalization. He died three months later from                    failing to maintain their property in compliance with the
complications that doctors attributed to his fall. The                  building codes.20
complaint and supporting expert testimony asserted that Mr.
Lang’s fall was caused by the risers of the two steps being             Another case is pending and active before the Supreme
several inches higher than the maximum permitted by the                 Court which will address issues also relating to the open and
Ohio Basic Building Code, and the absence of a handrail,                obvious defense: Stewart v. Lake Cty. Historical Soc.,21 Case
also required by the building code. There was no dispute                No. 2006-2029. In Stewart, the Supreme Court of Ohio will
that the steps and lack of a handrail were open and obvious             be deciding whether guidelines adopted in accordance with
to the Langs.                                                           the Americans with Disabilities Act trumps the open and
                                                                        obvious doctrine and, if so, whether a non-disabled person
The trial court granted summary judgment to the defendant               has standing to argue that a ramp on the property that is not
motel on the grounds that the height of the steps and                   ADA compliant is an unreasonably hazardous condition that
absence of a handrail were open and obvious conditions,                 caused her to slip and fall. The plaintiff in Stewart presented
and thus the motel had no duty to protect or warn its guests            an opinion from a consultant establishing that the
about those conditions. The court of appeals agreed and                 wheelchair ramp exceeded the maximum slope allowed by
affirmed the trial court’s summary judgment. But,                       ADA regulations. In reversing the trial court’s summary
recognizing that its decision was in conflict with two other            judgment in favor of the Historical Society, the appellate
appellate courts in Ohio, it certified the case to the Supreme          court found that even though the plaintiff did not qualify as
Court to resolve the inter-district conflict.                           disabled under the ADA, the ramp’s failure to comply with
                                                                        ADA standards could be considered as evidence of
Affirming the courts below and upholding the continued                  negligence. Briefing in Stewart, which had been stayed
viability of the open and obvious defense, the Supreme                  pending a decision on Lang, has now resumed and oral
Court distinguished between its prior case law that held                argument should take place later this year.22
violations of statutory duties amounts to negligence per se
(precluding the open and obvious defense)16 and                         With the aging population of baby-boomers, slip/trip and fall
administrative rules, like the Ohio Basic Building Code, that           claims are predicted to increase in volume in the coming
do not amount to negligence per se.     17
                                             In making this             years. Maintaining the continued viability and consistent
distinction, the Supreme Court declared that while a building           application by courts of the open and obvious doctrine is of
code violation may provide evidence that a condition was                great importance to the successful defense of many
                                                                        premises liability cases. The Supreme Court of Ohio’s recent


Summer 2009 OACTA Quarterly Review                                 14
decision in Lang may have closed one loophole in the open
and obvious doctrine, but the plaintiff’s bar still has the open               Tim Fitzgerald is a partner with the law firm of
and obvious doctrine in the cross-hairs and efforts to avoid                   Gallagher Sharp where he is in charge of the firm’s
or minimize its definitive result can be expected. Stay                        Appellate Practice Group. His practice is devoted to
tuned.                                                                         appellate advocacy, commercial litigation and the
                                                                               defense of professional liability and personal injury
                                                                               actions and litigation involving insurance carriers. Mr.
                                                                               Fitzgerald is certified as an Appellate Law Specialist
Endnotes                                                                       by the Ohio State Bar Association with substantial
1
   The most commonly invoked exception to the open and obvious
   doctrine arises when there are “attendant circumstances” that may           experience handling appellate cases at all levels of
   distract the plaintiff’s attention or interfere with the plaintiff’s        Ohio’s state and federal courts. Mr. Fitzgerald has
   ability to detect and appreciate the danger of the condition. Herbst
   v. Kroger Co., 6th Dist. No. L-08-1413, 2009-Ohio-2767, at ¶9; Frano        successfully argued several cases before the Ohio
   v. Red Robin Internatl., Inc., 11th Dist. No. 2008-L-124, 2009-Ohio-
   685, at ¶22.                                                                Supreme Court and he has authored a number of
2
   Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573,          amicus briefs on behalf of OACTA in the Ohio
   syllabus.
3
   Slip Opinion No. 2009-Ohio-2495.                                            Supreme Court, including Lang v. Holly Hill Motel. He
4
   Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 565, 1998-Ohio-
   184; Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81                is also counsel of record for the Lake County
   Ohio St.3d 677, 680, 1998-Ohio-602.                                         Historical Society in the Supreme Court case of
5
   Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d
   312, 315, 1996-Ohio-137.                                                    Stewart v. Lake Cty. Historical Soc. which is discussed
6
   Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203.
7
   Armstrong, at ¶5.                                                           in this article.
8
   Armstrong, at ¶13.
9
   Sidle v. Humphrey (1968), 13 Ohio St.2d 45, paragraph one of the
   syllabus.                                                                   In addition to being a member of OACTA, Mr.
10
   Armstrong, at ¶ 5, quoting Simmers v. Bentley Constr. Co., 64 Ohio
   St.3d 642, 644, 1992-Ohio-42.                                               Fitzgerald is a member of a number of other
11
    Armstrong.                                                                 professional associations including the American,
12
   Simmers, 64 Ohio St.3d at 644, footnote 2; Armstrong, at ¶ 12-13.
13
   Simmers; see also, Nageotte v. Cafaro Co., 160 Ohio App.3d 702,             Ohio State, and Cleveland Metropolitan Bar
   2005-Ohio-2098 (applying Simmers to company responsible for
   managing property and maintaining parking lot).                             Associations, and DRI. He is a member of the Ohio
14
   Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, ¶20-25.               State Bar Association’s Appellate Law Specialty
15
   Ahmad v. AK Steel Corp., 12th Dist. No. CA2006-04-089, 2006-Ohio-
   7031, discr. appeal dismissed as improvidently allowed, 119 Ohio            Board, a Fellow in the Litigation Counsel of America,
   St.3d 1210, 2008-Ohio-4082; Uddin v. Embassy Suites Hotel, 165
   Ohio App.3d, 2005-Ohio-6613, discr. appeal dismissed as                     a Life Member of the Judicial Conference of the
   improvidently allowed, 113 Ohio St.3d 1249, 2007-Ohio-1791.                 Eighth Judicial District, and a Barrister in the William
16
   Robinson, ¶24-25.
17
   Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 1998-Ohio-184.            K. Thomas American Inns of Court. Mr. Fitzgerald
18
   Lang, at ¶21.
19
   Id., at ¶22 (“This decision applies only to those cases in which an         received his undergraduate B.S. degree from
   alleged Building Code violation creates an alleged danger that is           Marquette University and his J.D. degree from
   allegedly open and obvious to the plaintiff.”)
20
   Id., at ¶23.                                                                Cleveland-Marshall College of Law.
21
   169 Ohio App.3d 1, 2006-Ohio-4822, discr. appeal allowed, 112
   Ohio St.3d 1469, 2007-Ohio-388.
22
   Another case, Kirchner v. Shooters on the Water, Inc., 167 Ohio
   App.3d 708, 2006-Ohio-3583, discr. appeal allowed and stayed,
   113 Ohio St.3d 1487, 2007-Ohio-1986, appeal stayed, 119 Ohio
   St.3d 1425, 2008-Ohio-4170, remains pending before the Supreme
   Court too but the stay on briefing pending a decision in Lang has
   not been lifted by the Court in Kirchner.




                                                                          15
                             Online Social Networking Sites –
                                  A New Tool for Litigators?
                                                           Mary S. Peterson
                                        Associate Counsel of the Cincinnati Insurance Company


                      Will you be my friend? Can I follow you?        background, employment, marriage and dating status,
                      Saying “yes” to these simple questions          hobbies, and interests.7 Additionally, most sites often allow
                      could have dramatic ramifications on            users to post multimedia such as pictures, videos, and links
                      your litigation. Social Networking Sites        to favorite websites. Many social networking sites allow the
                      [hereinafter SNS] MySpace.com,                  user to post a string of messages to and from other users.
                      Facebook.com, Cyworld.com, Bebo.com             Other SNS applications, such as Twitter.com allows users to
                      and Twitter.com are easy sources of             post their current moods or daily plans for their “followers” to
valuable information for litigators. For better or for worse,         read. Each SNS has a differing degree of visibility, which can
opponents, clients and witnesses may post information,                be further limited by the user.8
sometimes on a minute-by-minute basis (as with Twitter),
that is material and probative to lawsuits. Discovery through         Common Lingo
SNS is cheap and quick, and may yield huge dividends.                 Upon opening an account the SNS asks users to identify
Therefore, identifying and reviewing a clients, an adversary’s        acquaintances who share profiles on the website. The term
or even a juror’s SNS page may quickly become a matter of             “friend” means someone who the user grants access to
due diligence for all litigators.
                                1
                                                                      his/her SNS.9 “Friends” can include anyone: your college
                                                                      roommate, next-door neighbor, boss, a childhood friend or
        What are Online Social Networking Sites?                      even a stranger.10 A “friend request” is notification that
                                                                      someone wants access to your page.11 The creator of the
Online SNS generally consist of three elements: (1) an                page can grant or deny this request (“friend
individual creates an online profile within a system, (2) each        confirmation”) and has the option to remove the “friend” at
user has a list of other online users with whom they share            a later time.12 Once given “friend” status, the “friends” can
some connection, and (3) online user views their list of              access each other’s profile to observe and post messages on
connections and those made by other users. By and large,
                                                2
                                                                      the page.
most social networking sites are used to communicate to
known acquaintances instead of meeting strangers.3 Some               Each SNS user will have a list of “friends” that is publicly
sites, however, cater toward meeting new people with like             displayed. By searching a user’s “friend” list, other users can
interests. An aspect peculiar to social networking is the
            4
                                                                      locate mutual acquaintances and become their “friend”, as
degree of personal expression that many users post on their           well. Seeing a user’s “friend” list provides a valuable insight
profile. Posted titillating tales, provocative photos, and
        5
                                                                      into the user’s personality. Many sites allow “friends” to post
vagarious videos can provide a treasure trove of information          public messages on the profile. The “wall” is the space on
for any litigator.                                                    the user’s profile page where “friends” can post messages
                                                                      for the user and everyone else who has access to the page.13
When creating a user profile, the social networking website           The level of visibility of a user’s profile varies by design, and
will give the user a series of questions for personal                 the user’s choice of display settings. If the page is public, the
information to make available on his or her profile. These
                                                        6
                                                                      information contained therein is available for anyone to view
questions ask for information such as the user’s age,                 and download.
location, religious and political affiliations, educational



Summer 2009 OACTA Quarterly Review                               16
Facebook                                                                          users, up an amazing 752%.35 Twitter is a free SNS and
The most popular SNS is currently Facebook with nearly 1.2                        micro-blogging service that enables its users to send and
billion visits as of January 2009.         14
                                                The general public can            read other “tweeters” (Twitter.com users) updates known as
see a glimpse of a user’s home page but will not be                               tweets. 36 “Tweets” are limited to 140 text characters
permitted to post anything on the site. While Facebook                            displayed on the user’s profile page.37 The “tweets” are then
initially started as a SNS for a few Ivy League schools, it has                   delivered to Twitter “followers,” or other Twitter users who
expanded to anyone with a valid email address.               15
                                                                  Facebook        have subscribed to receive the “tweets.”38 Senders have the
is especially popular among college students.16 Yet, in 2009,                     option to choose who receives their “tweets” or can, by
membership by users 35-54 grew at 276.4%, 55 years and                            default, allow anybody to access them.39
older grew by 194%.17 The 25-34 year old demographic
doubles every six months.18                                                                         Ethical Considerations


Facebook has very similar features to My Space but is more                        Ohio Rules for Professional Conduct prohibits the use of real-
restrictive and it allows users to view other profiles within the                 time electronic contact with a prospective client.40
same networks.19 Facebook networks are comprised by                               Additionally, the Model Rules of Professional Conduct
region, city, school, and company.          20
                                                 Users have the option to         prohibit a lawyer from communicating with an adverse party’s
further restrict their profile’s display to “friends” only. To     21
                                                                                  client without the consent of the opposing counsel.41 In most
become a Facebook “friend,” one user must request the                             cases, a litigator browsing an opposing client’s SNS can do so
other to add him as a “friend.”       22
                                           Once “friends”, the users              without violating Model Rule 4.2, as long as the information
have mutual access to each other’s profile.             23
                                                                                  is in the public domain. But, does a “friend request” by a
                                                                                  lawyer constitute a “communication” under the Model
MySpace                                                                           Rules? While there have not been any Ohio cases that dealt
My Space is the second most popular SNS in the United                             specifically with this question, there are a few cases to
States.  24
               As of March 2009, My Space had over 124 million                    suggest that a “friend request” is most likely an improper
unique active users.     25
                              It was started in 2003 to compete                   communication. 42
with the then-popular social networking site, Friendster.26
My Space initially attracted independent rock bands and                                                    Uses of SNS
their fans for its self-promotion capabilities. Eventually,
                                                        27


teenagers and young adults became avid users.28                                   The practical use of information from SNS in the litigation is
My Space has all the features of a popular SNS. However,                          relatively new, and supporting case law has yet to catch up
My Space offered its users a broader ability to design their                      although certainly, basic evidentiary rules apply. A Maryland
pages.   29
              Each My Space profile is a blank canvas for its user                federal court recently determined electronically stored
to create any way they desire.        30
                                           The user profile contains a            information could be used in trial if the data is: (1) relevant,
list of the user’s friends and a search tool to find other                        (2) authentic, (3) not hearsay or admissible under an
users.31
              My Space does not limit viewing profiles by                         exception to rules barring hearsay evidence, (4) original or
networks; rather, it is the user’s decision to restrict his/her                   duplicate, or admissible as secondary evidence to prove its
profile from public display.     32
                                      If the profile is limited from              contents, and (5) probative value must outweigh its
public view, another My Space user must request permission                        prejudicial effect. 43 As the use of SNS information
to view the profile. 33                                                           increases, expect to see more case law and perhaps a
                                                                                  modification of evidence rules clarifying the practical
Twitter                                                                           considerations in admitting electronic information.
Twitter is the third most popular and quickest rising SNS.              34


As of December 2008, Twitter reported 4.43 million unique
                                                                                                                                          CONTINUED


                                                                             17
SNS can be use to obtain a wide variety of information about                                          Conclusion
potential witnesses, opposing parties or even jurors. The
contents of a person’s SNS page, blog or tweet give a unique            If you have not used SNS as part of your regular litigation
insight into a person’s life, thoughts, prejudices and opinions.        investigation, I highly recommend you start. There is a
Information contained on a person’s site has been used in               tremendous amount of personally published, public
multiple ways in litigation. In California, at the sentencing           information on the web waiting for discovery. Google your
hearing for a 22-year-old defendant convicted of driving                Plaintiff. Search Facebook for a witness. Check to see if your
under the influence and vehicular manslaughter, My Space                jurors Twitter. Surf the web. You will be very surprised and
photos of the defendant partying and drinking with friends              pleased with the information you discover.
were used by the prosecution to show the defendant’s lack
of remorse.44 Despite pleas for leniency from the victim’s              I would like to thank recent Akron University Law School Graduate
family and the Probation Department, the Judge sentenced                Earle Noel for his invaluable assistance in providing the research
the Defendant to five years and four months in prison.        45
                                                                        for this article.


In Pennsylvania, during a recent Federal corruption trial, the
Judge threatened a mistrial after it was discovered a juror
posted updates on the case on Twitter and Facebook. 46                  Endnotes
During the trial, the juror made multiple posts including one           1
                                                                             Due Diligence with Social Networks, Thompson, Tamara, December
                                                                             12, 2008, Law.com, http://www.law.com/jsp/legaltechnology/
that declared “Stay tuned for a big announcement on                          pubArticleLT.jsp?id=1202426678705
                                                                        2
                                                                             Social Network Sites: Definition, History, And Scholarship, Boyd, D.
Monday everyone!”47 The Judge permitted deliberations to
                                                                             M., and Ellison, N. B. (2007), Journal of Computer-Mediated
go forward convicting the defendant, however the defense                     Communication, 13 (1), article 11,
                                                                             http://jcmc.indiana.edu/vol13/issue1/boyd.ellison.html
plans an appeal using the juror’s posts as grounds for                  3
                                                                             Id.
                                                                        4
                                                                             Id.
reversal.48
              Additionally, in Pennsylvania a potential seven-          5
                                                                             Id.
figure settlement was drastically effected after SNS photos of          6
                                                                             Id.
                                                                        7
                                                                             Id.
the plaintiff were used to contradict her sworn testimony               8
                                                                             Id.
                                                                        9
                                                                             Can Facebook Be Your Friend? Real Simple, April 2009, 160.
about her quality of life after the accident. 49
                                                   Photos of the        10
                                                                             Id.
Plaintiff looking toned and tanned, partying with her                   11
                                                                             Id.
                                                                        12
                                                                             Id.
girlfriends and drinking in her halo brace effectively reduced          13
                                                                             Id.
                                                                        14
                                                                             Top Twenty Five Social Networking Sites - Feb 2009, February 17,
plaintiff’s settlement demand.   50
                                                                             2009, http://social-media-optimization.com/2009/02/top-twenty-five-
                                                                             social-networking-sites-feb-2009/
                                                                        15
                                                                             Id.
In New Jersey, a Judge ordered plaintiffs to provide the                16
                                                                             Id.
                                                                        17
                                                                             2009 Facebook Demographics And Stastics Report 276% Growth In
defense with the contents of their e-mails and SNS postings
                                                                             35-54 Users, Peter Corbett, January 5, 2009
as the court determined the requested electronic information                 http://www.istrategylabs.com/2009-facebook-demographics-and-
                                                                             statistics-report-276-growth-in-35-54-year-old-users/
would have a significant impact on understanding the                    18
                                                                             Id.
                                                                        19
                                                                             http://en.wikipedia.org/wiki/Facebook
plaintiffs’ anorexia and bulimia and help determine the                 20
                                                                             Id.
defendant insurance company’s responsibility for payment of             21
                                                                             Id.
                                                                        22
                                                                             Id.
the plaintiffs’ medical expenses.51 Finally, in Cincinnati, a           23
                                                                             Id.
                                                                        24
                                                                             Top Twenty Five Social Networking Sites - Feb 2009, February 17,
juror was removed from a panel after plaintiff’s counsel
                                                                             2009, http://social-media-optimization.com/2009/02/top-twenty-five-
discovered the following Facebook post: “Barry Price is                      social-networking-sites-feb-2009/
                                                                        25
                                                                             My Space Shrinks As Facebook, Twitter And Bebo Grab Its Users,
sitting in hell. . . aka jury duty.”52 These are just a few                  David Smith, March 29, 2009, http://www.guardian.co.uk/technology/
                                                                             2009/mar/29/myspace-facebook-bebo-twitter
examples of the unlimited potential uses for information                26
                                                                             My Space, Your Space, or Our Space? New Frontiers in Electronic
contained on SNS.                                                            Evidence, John S. Wilson, Oregon Law Review, Vol. 86, 1201, 1222
                                                                             (2008).
                                                                        27
                                                                             Id.
                                                                        28
                                                                             Id.



Summer 2009 OACTA Quarterly Review                                 18
29
   History of My Space, A. Cottrell, http://music.lovetoknow.com/
   History_of_Myspace
30
   “A Place for Friends” A History of My Space, August 14, 2008,                 Mary S. Peterson is Associate Counsel of the
   http://www.randomhistory.com/2008/08/14_myspace.html
31
   How My Space Works, Julia and Patrick Brothers,                               Cincinnati Insurance Company. Mrs. Peterson has
   http: computer.howstuffworks.com/myspace.htm
32
   Id.
                                                                                 worked in the Legal Department, Trial Division since
33
   How to Block My Space Users, http://www.dummies.com/how-to/                   1991, serving as Staff Counsel and Managing
   content/how-to-block-myspace-users.html
34
   Id.                                                                           Attorney of the Columbus Law Office. She is
35
   Twitter’s Massive 2008: 752 Percent Growth, Adam Ostrow, January
                                                               ,
                                                                                 currently the Managing Attorney of the Akron, Ohio
   9, 2009 http://blog.compete.com/2009/02/09/facebook-myspace-
   twitter-social-network/                                                       Law Office and serves as Chairman of the Law
36
   Twitter, http://en.wikipedia.org/wiki/Twitter
37
   Id.                                                                           Offices Technology Committee. Prior to working for
38
   Id.                                                                           The Cincinnati Insurance Company, Mrs. Peterson
39
   Id.
40
   Ohio Rules of Professional Conductm, Rule 7.3.                                was an Assistant Attorney General for the Court of
41
   Ohio Rules of Professional Conduct, Rule 4.2 “In representing a
   client, a lawyer shall not communicate about the subject of the               Claim Defense Section of the Ohio Attorney
   representation with a person the lawyer knows to be represented by            General’s Office and worked for a private defense
   another lawyer in the matter, unless the lawyer has the consent of the
   other lawyer or is authorized to do so by law or a court order.”              law firm. She devotes her practice to general civil
42
   See People v. Fernino (2008), 19 Misc.3d 290, 851 N.Y.S.2d 339.
43
   Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, (D.Md.                  litigation with an emphasis on complex torts.
   May 04, 2007) (NO. CIV.A.PWG 06 1893)
44
   Court Case decision reveals Dangers of Networking Sites, Evan
   Wagstaff, Daily Nexus, February 28, 2007 http//www.dailynexus.com/            Mrs. Peterson is a 1983 graduate of Bowling Green
   article.php?a=13440
45
   Id.
                                                                                 State University receiving a Bachelor of Science
46
   As Jurors Turn to Web, Mistrials Are Popping Up, John Schwartz,               degree in History and English Education. She is a
   March 17, 2009 http://www.nytimes.com/2009/03/18/us/
   18juries.html?_r=1                                                            1987 graduate of the University Of Toledo College Of
47
   Id.
48
   Id.
                                                                                 Law where she served as Vice Chairman of the Moot
49
   The Danger of Self-Inflicted Damage on the Web,                               Court Board. Mrs. Peterson is a member of the Ohio
   Don P. Palermo, Pennsylvania Lawyer, November-December 2008.
50
   Id.                                                                           State Bar Association, The Akron Bar Association
51
   Is Facebook Your “Permanent Record?, Sarah Perez February 4,
                                                                                 and the Ohio Association of Civil Trial Attorneys.
   2008, http://www.readwriteweb.com/archives/
   is_facebook_your_permanent_rec.php
52
   Juror Booted for ‘Sitting in Hell’ Facebook Post, Cincinnati Enquirer,
   January 31, 2009, http://www.newser.com/story/49554/juror-booted-             Mrs. Peterson currently lives in northeastern Ohio
   for-sitting-in-hell-facebook-post.html                                        with her husband John and their two teenage
                                                                                 daughters. When not working, Mrs. Peterson enjoys
                                                                                 the outdoors, gardening, biking and spending time
                                                                                 with her family.




                                                                            19
                     Are Tort Claimants Necessary Parties
                     to Insurance Coverage Dec Actions?
                                                            Shawn M. Blatt
                                                        Freund, Freeze & Arnold



                    Whenever an insurer decides to litigate             persons who have or claim any interest that would be
                    coverage through a declaratory judgment             affected by the declaration. The Broz court noted that it had
                    action, it must decide whom to include              previously ruled that tort “claimants” had standing to assert
                    as a party to the lawsuit. Certainly, the           declaratory judgment actions against the tortfeasor’s insurer
                    policyholder, and any other insured                 before obtaining a judgment against the insured. Because
                    should be included. It is not so clear as           the tort claimant had an interest in the action and was not
                    to whether a tort claimant, i.e.,                   included in the original coverage case, it could have no
“potential” judgment creditor, should be included. The Ohio             effect on the tort claimant’s rights to seek coverage under
Supreme Court is now considering the issue in Estate of                 the policy.
Heintzelman v. Air Experts, Inc., Case No. 08-2173 (120
Ohio St.3d 1524 901 NE2d 244, (appealed from Estate of                                   1999 Amendments in H.B. 58

Heintzelman v. Air Experts, Inc., (Ohio App.5th Dist 2008),
                                                                        In 1999, the Ohio General Assembly passed H.B. 58, which
2008 – Ohio – 4883.
                                                                        amended several statutes in an attempt to supersede the

        Tort Claimants Were Necessary Parties                           Broz decision as well as other decisions giving the tort
                                                                        claimant rights to challenge coverage before judgment. The
Originally, tort claimants had to be included as parties, or the        new section of Ohio Revised Code § 2721.02(B) was
decision in the dec action would have no preclusive effect              enacted to prohibit direct actions by claimants against the
on any later claim for coverage by a judgment creditor. See             tortfeasor’s insurer until the claimant obtains the final
Broz v. Winland (1994), 68 Ohio St.3d 521, 629 N.E.2d                   judgment against the tortfeasor:
395. In Broz, the insurer obtained a judgment declaring it
had no duty to defend or indemnify its insureds for the                            A plaintiff who is not insured under a particular

claims of the tort claimant. The insurer did not include the                       policy of liability insurance may not commence

tort claimants as parties. Later, after judgment was                               against the insurer that issued the policy an action
obtained, the judgment creditor sued to recover on the                             or proceeding under this chapter that seeks a
policy. The Supreme Court held that the tort claimant (now                         declaratory judgment or decree as to whether the
judgment creditor) was not bound by the previous decision                          policy coverage provisions extend to an injury, death
on coverage:                                                                       or loss to a person or property that a particular
                                                                                   insured under the policy allegedly tortiously caused
         A determination made in a declaratory judgment                            the plaintiff to sustain . . . until a court of record
         action between an insurance company and its                               enters, in a distinct civil action for damages
         insured does not bind persons injured by the                              between the plaintiff and that insured . . . a final
         insured’s negligence who are not parties to the                           judgment awarding the plaintiff damages.
         declaratory judgment action.
                                                                        Ohio Revised Code § 2721.02(B).
Broz, 68 Ohio St.3d, 521, syllabus.
                                                                        Division (B) of R.C. 2721.12 was enacted to make dec
The Supreme Court in Broz relied upon then existing                     actions between an insurer and insured binding on third
language in R.C. 2721.02 that required the joinder of                   parties:

Summer 2009 OACTA Quarterly Review                                 20
         (B)      A declaratory judgment or decree that a                      omitted); Broz v. Winland (citations omitted); and
                  court enters in an action or proceeding                      Mezerkor v. Mezerkor (citations omitted).
under this chapter between an insurer and a holder of a
policy of liability insurance issued by the insurer and that          1999 H.B. 58 § 4, eff. 9-24-99.

resolves an issue as to whether the policy’s coverage
                                                                      The Legislature also declared its intent that the
provisions extend to an injury, death or loss to person or
                                                                      amendments to 2721.02 were to supersede Broz v.
property that an insured under the policy allegedly tortiously
                                                                      Winland to make any judgment in a dec action binding on
caused shall be deemed to have the binding legal
                                                                      third parties, even those who are not parties:
effect described in division (C)(2) of section 3929.06
of the Revised Code and to also have binding legal                             The General Assembly declares that in enacting new
effect upon any person who seeks coverage as an                                division (C) of 2721.02, new division (B) of section
assignee of the insured’s rights under the policy in                           2721.12, and division (C) of the new section
relation to the injury, death or loss involved.                                3929.06 of the Revised Code . . . it is the intent of
                                                                               the General Assembly to supersede the effect of the
Ohio Revised Code § 3929.06(C)(2), relating to
                                                                               holding of the Ohio Supreme Court in Broz v.
supplemental complaints arising on behalf of judgment
                                                                               Winland (1994), 68 Ohio St.3d 521, and its
creditors, was passed with the following language:
                                                                               progeny relative to the lack of binding legal effect of

         (2)      If prior to the judgment creditor’s                          a judgment or decree upon certain persons who
                  commencement of the civil action against                     were not parties to a declaratory judgment action or

                  the insurer, the holder of the policy                        proceeding between the holder of a policy of liability

                  commences a declaratory judgment under                       insurance and the insurer who issued the policy.
                  Chapter 2721 of the Revised Code against
                                                                      1999 H.B. 58 § 5, eff. 9-24-99.
                  the insurer for a determination as to
                  whether the policy’s coverage provisions            The intent of the Legislature appeared clear: tort claimants
                  extend to the injury, death or loss to              who had not obtained a final judgment could not initiate a
                  persons or property underlying the                  dec action disputing coverage and would be subject to a
                  judgment creditor’s judgment and if the             declaratory judgment between an insurer and the holder of a
                  court involved in that action or proceeding         policy, regardless of whether the claimant was a party to the
                  enters final judgment with respect to the           case. Despite these changes, courts are still refusing to
                  policy’s coverage or non-coverage of that           apply the preclusive effects of a dec action if the tort
                  injury, death or loss, that final judgment          claimant was not a party.
                  shall be deemed to have binding legal
                  effect upon the judgment creditor . . .                 Development of Law after 1999 Amendments

Finally, the General Assembly stated its intent to supersede          One of the earliest cases interpreting the amended statute
Broz with the passing of H.B. 58, as follows:                         was Cincinnati Ins. Co. v. Consolidated Equip. Co. (C.A.
                                                                      Montgomery Cty., 2nd Dist. 2003), 2003-Ohio-47. In
         The General Assembly declares that in enacting               Consolidated, damages occurred when a Consolidated
         divisions (A) and (B) of new section 3929.06 and             employee was servicing an oil burner on an oven located at
         new division (B) of Section 2721.02 . . ., it is the         Nickles Bakery. Nickles was insured by USF&G, who paid
         intent of the General Assembly to supersede the              significant money for damage to the oven. Nickles also
         effect of the holding of the Ohio Supreme Court in           incurred additional uninsured losses.
         Krejci v. Prudential Prop. & Cas. Ins. Co. (citations
                                                                                                                             CONTINUED


                                                                 21
The insurer filed a declaratory judgment against its insured,          action. Indiana Ins. Co. v. Murphy (2006), 165 Ohio App.3d
Consolidated and did not include any claimants (Nickles or             812, 848 N.E.2d 889. In Murphy, a tort claimant sought to
USF&G). Consolidated then filed a third-party complaint                intervene in a declaratory judgment action between an
including Nickles and USF&G in the complaint as third-party            insurer and its insured that was set to decide coverage
defendants in the dec action. The insurer filed a motion to            issues for the underlying litigation. The Court of Appeals for
dismiss Nickles and USF&G as improper parties on the                   the Third District held that the tort claimant’s interests were
grounds that, as tort “claimants,” they had no interest in the         sufficient to mandate intervention and that the preclusive
coverage. The trial court granted the motion to dismiss,               effects of the 1999 amendments would impair the tort
finding that USF&G and Nickles did not have any interest in            claimant’s rights in its absence, thereby necessitating
the proceeding based on the ’99 amendments.                            intervention. The court followed the decision in
                                                                       Consolidated Equipment, noting that although the 1999
In reviewing the statutes and the changes made, the Second             amendments were intended to supersede the effects of
District Court of Appeals held that Ohio Revised Code §                Broz and Krejci and thereby prohibited a tort claimant from
2721.02(B) clearly bars a direct action on behalf of a tort            commencing a declaratory judgment action, nothing in the
claimant against an insurer but does not prevent a tort                amendments barred the tort claimant from participating or
claimant from being included as a party in the proceeding.             intervening in a pending action. Id. at 823. It read the term
The court was reluctant to bar parties who clearly had an              “commenced” very narrowly, finding that intervention by the
interest in the outcome of the case, thereby binding them to           tort claimant was allowed.
the results of the dec action without ever being heard. The
court expressed its reservations with the 1999                         The United States District Court for the Northern District of
amendments to the Declaratory Judgment Act and R.C. §                  Ohio, in Medical Assurance Co., Inc. v. Martinez, 2008 W.L.
3929.06:                                                               2227345 (N.D. Ohio 2008), also adopted the analysis that
                                                                       the 1999 amendments, while prohibiting tort claimants
         In our opinion, it is logically inconsistent to say on        from “commencing” actions, did not prohibit tort claimants
         one hand that a party does not have an interest in a          from “intervening” in pending actions.
         proceeding such that he is a proper and necessary
         party and to claim on the other that he is bound by a         Recently, the Federal District Court for the Northern District
         judgment in the same proceeding because his                   of Ohio and the Fifth District Court of Appeals have held that
         interest is sufficiently strong. Yet this is the              tort claimants are again necessary parties to any tort action
         conundrum created by the 1999 amendments to                   filed by an insurer. In Polyone Corp. v. National Union Fire
         the Declaratory Judgment Act and to R.C. 3929.06.             Ins. Co. of Pittsburgh (2008 N.D. Ohio), 2008 W.L.
                                                                       4592927, Polyone, the insured, filed a dec action seeking
Id. at 52.                                                             coverage under an insurance policy and naming several
                                                                       parties, including the tort claimant, as defendants. The
At least one federal court reviewing the 1999 amendments
                                                                       insurer sought to remove the case to federal court, claiming
to the declaratory judgment statutes has also questioned
                                                                       that the tort claimant’s consent was not necessary because
the constitutionality of the language and the application of
                                                                       the tort claimant was an improper party to the dec action.
res judicata to a tort claimant who never had an opportunity
                                                                       The district court held that, in fact, the tort claimant was a
to defend its interests in court. See Harnish v. Safe Auto Ins.
                                                                       necessary party and that its inclusion in the case was
Co. (E.D. Ky. 2005), 2005 W.L. 1868785.
                                                                       actually required by statute and case law.

A number of courts have noted that the preclusive effect of
                                                                       The court noted that the 1999 amendments to the
the 1999 amendments’ actually implicates the tort
                                                                       declaratory judgment statute and 3929.06 must be read in
claimant’s interests, thereby mandating that a tort claimant
                                                                       pari materiae and held that, while a tort claimant cannot
be allowed to intervene in a pending declaratory judgment


Summer 2009 OACTA Quarterly Review                                22
“commence” an action for declaratory judgment until it                 policy. Any determination between an insurer and insured
obtains a judgment against the tortfeasor, an action                   would have no preclusive effect on a tort claimant who later
commenced by the policyholder must add the tort claimant               obtained a judgment and filed a supplemental complaint to
to the action as a necessary party. Id. at 5.                          be paid under the policy. In 1999, the intent of the General
                                                                       Assembly was to supersede Broz by making any
In so holding, the court relied upon the decision in                   determination between an insurer and an insured relating to
Heintzelman v. Air Experts, Inc. (Ohio App. Delaware Cty., 5th         coverage for a particular claim binding on all parties,
App. Dist. 2008), 2008-Ohio-4883, a decision that has now              including tort claimants. While the intent appeared clear,
been accepted for review by the Ohio Supreme Court. In                 the effect of that intent was perhaps never fully considered.
Heintzelman, the 5th district held that the ’99 amendments             When courts were confronted with the prospect of denying
only made a previous judgment in a dec action between an               coverage to a tort claimant without any notice or opportunity
insurer and its insured binding if the policyholder was the            to be heard the result was predictable: the statute was
one who commenced the suit against the insurer.                        narrowly interpreted to preserve the tort claimant’s rights.
                                                                       The changes apparently did not supersede Broz, because
                       Going Full Circle
                                                                       that case would still be decided the same way, under the

The intent behind the ’99 amendments seemed clear: to                  approach that has developed since the ’99 amendments.
supersede the effect of Broz by ensuring that tort claimants
                                                                              Ohio Supreme Court Accepts Heintzelman
who had not litigated a case to final judgment had no
standing to challenge coverage under any applicable                    The Ohio Supreme Court has now accepted the question of
insurance policy and binding those tort claimants to any               whether a tort claimant is bound by a dec action between an
judgment in a dec action between an insurer and its insured.           insured and the insurer. In the case Estate of Heintzelman v.
The 1999 amendments attempted to instill finality to dec               Air Experts, Inc., Case No. 08-2173, the insurer undertook
actions between insureds and their insurers so that later              the defense of its insured but reserved the right to deny
judgments rendered against the insured could not reopen                coverage. Later, the insurer filed a declaratory judgment
the issue of coverage.                                                 action seeking a declaration of no coverage or duty to
                                                                       defend and named its insured as the sole defendant. The
The attempt to ensure finality on coverage disputes between
                                                                       insured failed to answer the dec action, and the trial court
insureds and their insurers conflicts with the concerns that a
                                                                       granted default judgment against the insured, finding that
tort claimant (especially those tort claimants who have
                                                                       the insurer had no duty to defend or indemnify its insured for
strong valid claims that will likely result in a judgment) will
                                                                       the underlying lawsuit. Eventually, the underlying lawsuit
lose coverage under a policy without having the opportunity
                                                                       was taken to verdict, and a verdict was awarded in the
to be heard on the coverage issue. This conflict has resulted
                                                                       amount of $2,650,000.
in a very narrow reading of the amendments, such that tort
claimants are now being allowed to intervene into pending              Thereafter, the judgment creditor filed a supplemental
declaratory judgment actions between insurers and their                complaint against the insurer, seeking payment under the
insureds and claimants are not subject to judgments in                 insurer’s policy. The insurer defended on the grounds of res
previous dec actions unless the original dec action was                judicata and collateral estoppel because of its judgment
commenced by the policyholder.                                         against the insured finding it had no duty to defend or
                                                                       indemnify the insured for the claims.
It appears that we have now come full circle since the
decision in Broz v. Winland. Originally, the Ohio Supreme              The trial court held the original declaratory judgment
Court held that tort claimants were, in fact, necessary                prohibited the claims by the judgment creditor, but the court
parties to dec actions filed by insurers against insureds              of appeals rejected that argument and held that the
relating to determinations of coverage under any applicable                                                               CONTINUED


                                                                  23
judgment between the insurer and its insured was not                    interest of finality of judgments and judicial economy should
binding on the judgment creditor. The Court of Appeals for              be paramount.
the 5 district stated:
     th

                                                                        Under the current state of the law, insurers should always
          In a declaratory judgment action involving a                  include any tort claimants as party defendants in any dec
          determination of coverage between an insurer and              action seeking a declaration under a contract of insurance
          its insured, a final judgment in the declaratory              that may provide coverage for some or all of the claims.
          judgment action will have binding legal effect on the         While it appears that tort claimants were intended to be
          judgment creditor if the holder of the                        excluded, the development of the law since the 1999
          insurance policy commences the action                         amendment indicates that any dec action commenced by an
          against its insurer before the judgment                       insurer will not prevent a judgment creditor from reopening
          creditor commences its action against the                     the issue of coverage. The only time a previous dec action
          insurer.                                                      may have preclusive effects against a tort claimant would be
                                                                        one initiated by the policyholder. Until the Ohio Supreme
Id. at 9 (emphasis added). Because the insurer, and not the             Court finally determines the issue, the safest approach for
policy holder commenced the dec action, the judgment had                any insurer when seeking to have coverage decided is to
no preclusive effect on the supplemental complaint of the               include all potential tort claimants and all interested parties
judgment creditor.                                                      so that any judgment rendered will not subject to challenge.

The Ohio Supreme Court has accepted the case for review
and the matter is now being briefed. OACTA has submitted a
brief on behalf of the appellant insurer, American Family
Insurance Company.
                                                                            Shawn Blatt is a shareholder with the law firm of

The Ohio Supreme Court is confronted with the question of                   Freund, Freeze & Arnold. He focuses his practice in

whether the changes to the declaratory judgment statute                     civil litigation, and more specifically in the areas of

altered the requirement that potential judgment creditors be                insurance coverage, commercial litigation,

included in the lawsuit. The Court will decide the competing                construction law, lender liability, and professional

interests at issue: the interests of the insurance company in               liability of architects and engineers. He is a member

finality and ensuring that a judgment between the insurer                   of the Ohio Association of Civil Trial Attorneys and

and its insured controls all coverage disputes (as well as the              has recently authored an amicus brief for OACTA on

difficulty in identifying and serving all possible and potential            the changes to the declaratory judgment statute in

judgment creditors). These concerns of finality compete                     Ohio He is a member of the Defense Research

with the idea that all parties should have a fair and full                  Institute, and is a member of the insurance law

opportunity to litigate the claims or their insurance issues.               committees of both organizations. He is the former
                                                                            chairman of the Judiciary Committee for the Dayton
Some courts have held that no party should be denied                        Bar Association and is active in the Greene County
coverage under a contract of insurance without having an                    Bar Association.
opportunity to be heard in a court of law. However, that
concern is less significant before a judgment ever exists.
The law is clear that a judgment creditor has no right under a
policy unless and until a judgment is obtained, thereby
allowing a supplemental lawsuit. If a coverage decision is
rendered before judgment is taken, the potential judgment
creditor’s interest in coverage is merely a possibility, and the


Summer 2009 OACTA Quarterly Review                                 24
                          Medical Lien Subrogation Update
                                                          Patrick S. Corrigan
                                          Staff Counsel of the Cincinnati Insurance Company


                     • Definition: Subrogation literally                name rather than that of the policyholder in order to recover
                     means “to stand in the shoes of                    amounts paid on behalf of its policyholder. When a
                     another.” Subrogation as it applies to             tortfeasor’s insurer receives notice of another insurer’s
                     the right of a governmental entity to              subrogation claim, it is required to recognize that claim.
                     recover from an insurer or its insured is          Notice requirements require a specific indication of
                     governed by federal and state statutes.            subrogation rights. See, Motorist Mut. Ins. Co. v. Yates
                     The right of recovery, however, is an              (1988) 44 Ohio Misc.2d 5 (Dayton Muni. Ct.).
independent cause of action, irrespective of liability, which
looks to the parties involved for recovery.                             • Statutory Subrogation Rights
                                                                        • Political Subdivision Immunity
• Ohio’s Made Whole Doctrine: The made whole                            – Revised Code §2743.02(D)
doctrine requires that when an insured does not prejudice               The statutory language governing immunity of political
an insurer’s rights to subrogation, the insurer is not entitled         subdivisions allows that any recovery of the state shall be
to seek reimbursement or a setoff from coverage limits until            reduced by the aggregated insurance proceeds, disability
full compensation has been provided to the insured.                     awards and other insured recovery obtained by the claimant.
Likewise, the subrogation interest of the insurance company             The principle precluding recovery against the state is set
will not have priority where the policyholder receives less             forth in the decision of Community Ins. Co. v. Ohio
than a full recovery. A voluntary settlement by the insured             Department of Transportation (2001), 92 Ohio St.3d 76.
for less than the tortfeasor’s policy limits suggests full              ODOT’s negligence allegedly caused injury to the claimant,
compensation to the injured party.                                      and the health insurer pursued the recovery of medical
                                                                        expenses because the claimant was barred from recovering
In Northern Buckeye Education Counsel Group Health                      against the state under Revised Code Section 2743.02(d).
Benefits Plan v. Lawson, 103 Ohio St.3d 188, 2004-Ohio-                 The recovery was barred, since the claimant received
4886 held that a policyholder’s right to recovery is no longer          compensation from the insurance company for her medical
given priority over the insurers right to reimbursements when           expenses. A distinction arose in Heritage Ins. Co. v. Ohio
the policy language clearly an unambiguously protects the               Department of Transportation, 104 Ohio State 3d 513,
insurer’s right of reimbursement. Likewise, under Revised               2004 Ohio-6766, where the court determined that Section
Code §2744.05(b)(1), when a claimant receives benefits                  2743.02(d) does not apply to a joint tortfeasor seeking
for injuries under a policy of insurance, they are deducted             indemnification and/or contribution from the state because
from a judgment against a political subdivision. The amount             the joint tortfeasor is not deemed a claimant within the
of benefits are deducted irrespective of the claimant’s                 meaning of the statute.
obligation to reimburse any other subrogated carrier.
However, a claimant whose benefits have been deducted                   Political subdivisions are immune to subrogation claims
from an award will not be fully compensated, and therefore              pursuant to Revised Code §2744.05(b)(1). No insurance
is not required to reimburse a subrogated claim for benefits            company or other guarantor is entitled to subrogate against
deducted from an award against a political subdivision.                 a political subdivision to satisfy amounts paid under its
                                                                        contract. Likewise, state universities and colleges are
• The Insurer as the Real Party in Interest: A                          protected under Ohio Revised Code §3345.40(b)(2).
subrogated insurance carrier is entitled to file suit in its own
                                                                                                                               CONTINUED


                                                                   25
– UM/UIM Claims – Revised Code §3937.18(e)                             respective County Departments of Human Services.
Where there is payment under UM/UIM provisions of the                  Medicaid is a service offered to those deemed in need of
policy, the insurer is entitled to the proceeds of a settlement        state assistance.
for judgment resulting from the exercise of the insured’s
rights against the liable party.                                       – Aid to Dependent Children: Same criteria as Medicaid.

– Subrogation – Revised Code §3937.21                                  – Worker’s Compensation: Worker’s Compensation, also
Where an insurer pays a claim to its insured and the                   known as Industrial Commission, has an automatic lien on
payment is later determined to be the obligation of another            any settlement. Ohio law requires that anyone who submits
insurer, the claimant’s insurer shall be subrogated to the             a Worker’s Compensation claim to advise the Ohio Bureau
rights of its insured against the other insurer.                       of Worker’s Compensation or a self-insured employer of the
                                                                       identities of all third parties against whom the employee has
In Brezovar v. Am. Family Ins. Co., 2009-Ohio-1710, The 9    th
                                                                       a right of recovery. The Worker’s Compensation “right of
District Court of Appeals evaluated recovery language under            subrogation” is automatic. The Administrator of the Bureau
the American Family policy for medical expenses. In                    of Worker’s Compensation, a self-insuring employer, or an
Brezovar, both parties involved were insured by American               employee that contracts for the direct payment of medical
Family. The tortfeasor’s policy paid the claim, but withheld           services, is a “statutory subrogee” with the enforceable
$2,000.00 of a $15,000.00 settlement for satisfaction of               rights. In other words, use caution when determining who, is
medical payments provided by American Family under its                 in fact, the subrogee in the settlement.
insured’s policy. The claimant accepted the check in the
amount of $15,000.00 and represented and agreed in the                 – U.S. Department of Labor: Under the federal labor laws,
release that a lien of $2,000.00 was due and owing to                  including the various railroad and maritime laws, a right of
American Family to satisfy a medical expense payment                   recovery exists as an independent cause of action. This will
under the claimant’s own policy. The claimant then sought              most frequently be seen when a U.S. Postal Service
to avoid satisfaction of the $2000.00 lien. The court ruled            employee asserts a claim against an insured, i.e. dog bites,
that since the claim was settled within the limits of the              slip & fall. When the employee makes a job related claim,
policy owned by the tortfeasor, and no UIM coverage of the             the federal government has the right to assert its lien.
claimant applied, the claimant had no right to deny
reimbursing the $2,000.00.                                             – Social Security: The Federal Government, through the
                                                                       Department of Health and Human Services, Health Care
• What government programs give rise to a right of                     Financing Administration, administers the Social Security
  recovery?                                                            Program.


– Medicare: Under federal law, Medicare has a lien over                • What is the duty of the parties in cases involving
personal injury settlements and judgments for medical                    the above benefits?
payments to claimant. This “super lien” does not have to be
put in writing, and applies despite your lack of knowledge             As a potentially liable party, an insurer is required to make a
that Medicare has made payments.                                       settlement which protects the superseding lien. In other
                                                                       words, all of the above programs now have a lien which
– Medicaid: The State of Ohio, and its County                          circumvents a hold harmless agreement. Releases and
Commissioners, administers the Medicaid program in Ohio                indemnification agreements contain language designed to
through the Ohio Department of Human Services, and the                 protect the interests of the insurer and insured. However, no
                                                                       signature guarantees that the plaintiff will protect an insured



Summer 2009 OACTA Quarterly Review                                26
or carrier from a subsequent claim by the lien holder. While            Medicaid and Medicare entitlement status of all claimants.
Medicare has a “super lien”, Medicaid’s rights are based on             The penalty for noncompliance is $1,000.00 per day per
notice. According to Revised Code Section, 5101.58, “the                beneficiary. This applies to all settlements after July 1st of
third party becomes liable to the Department of Job and                 2009.
Family Services as soon as the third party is notified in
writing of the valid claims for recovery under this section.”           – Triggering Event for Reporting Results

• Medicare Recovery under MMSEA Section III.                                     •   Includes two steps for the responsible entity.
                                                                                          – Step 1 requires the insurer or
Under the law, no settlement, compromise, judgment or                                     responsible entity to determine whether a
other recovery in any action shall be final unless reasonable                             claimant is entitled to Medicare benefits.
notice and opportunity to collect is provided to the                                      – Step 2 stipulates that if the claimant is
governmental entity responsible for recovery. The Centers                                 entitled to benefits the information must
for Medicare and Medicaid Services (CMS) collects data                                    be submitted to the Secretary of Health
from reporting entities to fulfill the reporting requirements                             and Human Services through the
under Section III of the MMSEA. MMSEA is the Medicare,                                    Coordination of Benefits Secure Website
Medicaid and SCHIP Extension Act of 2007 (P.L. 110-173).                                  (COBSW).
This Act, authorized under 42 U.S.C. 1395 y(b)(7) & (8)
governs all settlements. The extensive details and                               •   A report must be made where there has been a
requirements under the Act are found at www.cms.hhs.gov/                             settlement or judgment award or other
MandatoryInsRep/01_O.asp. The website provides                                       payment where ongoing medical payments
instructions on the implementation of the Act and warnings                           have been made. Two events are to be
on what not to do. The details of the Act are summarized                             reported; (1) the initial records to reflect the
below.                                                                               RREs acknowledgement of responsibility and
                                                                                     (2) a final report showing the termination of the
– Responsible Reporting Entities (RREs) under the                                    responsibility. Such a situation evolves where
  MMSEA                                                                              a claim has been made, but no suit has been
                                                                                     filed and the insurer agrees to pay for the
The reporting entities under the revised Medicare guidelines                         medical bills of the claimant. The RRE is only
are known as ‘responsible reporting entities.’ These entities                        required to report the obligation and does not
include employer healthcare plans, self-insured entities,                            have to allocate indemnity in medical
liability insurers and any other entity who assumes                                  payments. If there is no settlement, judgment
responsibility for medical payments for Medicare entitled                            or award, and the RRE intends to close the file,
beneficiaries. There are mandatory reporting obligations                             there is no obligation to report. However,
when the claimant is entitled to Medicare benefits. See, 42                          where it is clear that payment responsibility
U.S.C. §1395 y(b)8 (CMS-10265).                                                      may arise in the future, the RRE must report the
                                                                                     claimant to CMS.
Liability insurers and no-fault insurers have responsibility for
reporting claims. “No-fault insurance” is insurance that pays           – Reporting Thresholds under CMS
for medical expenses for injuries sustained on the property
or premises of the insured. Workers’ compensation plans                 For liability insurance, there is no minimum threshold for
also have an obligation to report. Under the new guidelines,            establishment ongoing responsibility for medical payments
the insurer and self-insurers are required to determine the             (ORM). For workers’ compensation, ongoing medical
                                                                                                                        CONTINUED


                                                                   27
responsibility, where the payment is for medical expenses              physicians, insurers and individuals involved in a case,
only, lost time of less than seven days where payment has
    ,                                                                  including state agencies entitled to payment by a third party
been made directly to the medical provider or the payment              provider. See, 42 C.F.R. §411.26 and U.S. v. Sosnowski
does not exceed $600.00, there will be no requirement to               822 F.Supp. 570 (W.D. Wis. 1993). In Sosnowski, Medicare
report through December 31 of 2010.
                               st
                                                                       obtained a judgment against a plaintiff and his attorney who
                                                                       had neglected to reimburse Medicare from the settlement.
– Practicalities of Identifying Medicare Eligibility                   Recovery may also be had against monies owed by the
                                                                       government, such as social security benefits. See, 20 C.F.R.
Centers of Medicare Services has developed a Query Access              §404.502 and 31 U.S.C. §3716. The entire Medicare
System. This is found under the MMSEA website for                      statute is found at 42 U.S.C. §1395. Y(b) and the
Responsible Reporting Entities. In order to determine                  regulations are located at 42 C.F.R. 411.20 at et seq.
whether an individual is a beneficiary of Medicare, one is
required to have the Social Security Number or health pair             Counsel historically have relied on an apportionment of
identification number, the first initial of the first name, the        recovery proceeds. Now the Medicare lien will attach to the
first six characters of the last name, the date of birth and           entire recovery unless the Court “or other adjudicator of the
gender.                                                                merits specifically designates amounts that are for payment
                                                                       of pain and suffering or other amounts not related to
          To determine Medicare eligibility, the insurer should        Medicare services, Medicare will accept the Court’s
          ask the claimant to sign a Social Security form              designation. Medicare does not seek recovery from portions
          identified as SSA-3288, which is a consent to                of Court awards that are designated as payment for losses
          release information. This form may be submitted to           other than medical services” See, Medicare Intermediary
          the local Social Security Office to request a                Manual §3418.7 and Denekas v. Shalala, 943 F.Supp.
          complete benefit eligibility record.                         1073 (S. D. Iowa 1996), citing Zinman v. Shalala 835
                                                                       F.Supp. 1163, 1167 (N.D. California 1993), aff’d, 67 F.3d
• Medicare has specific super lien status.                             841 (9th Cir. 1995).


The government is entitled to collect from the claimant and            The Centers for Medicare and Medicaid Services maintains
his attorney, the third party who caused the injury and all            an operation known as “Medicare Coordination of Benefits”,
heath care or prescription providers who benefited from the            or COB. The COB office toll-free number from 8:00 a.m. to
occurrence. However, the claimant is frequently not                    8:00 p.m., Eastern Standard Time, is 1-800-999-1118.
                                                                                                                          .
collectable. The Medicare regulations state that “in the case          Additional information may be found online at http://
of liability insurance settlements and disputed claims under           www.cms.gov/medicare/cob. The COB that undertakes
an employer group health plan or no-fault insurance, the               insurance coverage archeology “to prevent mistaken
following rule applies: If Medicare is not reimbursed as               payment of Medicare benefits” can be accessed at http://
required by paragraph (h) of this section, the third party             www.coms.hhs.gov/medicare/cob/factsheets.
payer must reimburse Medicare even though it has already
reimbursed the beneficiary or other party. So, the proper              • As a practical matter, what should counsel do?
governmental entity must either be a payee on the check or
have provided written consent to the settlement. See, 42                   –   (1) Identify the Source of all Medical Payments.
U.S.C. §1395. y(b)(2)(B). The penalty languages allows for                     Exercise caution in identifying self-insured
doubling the amount owed to the agency.                                        employers. Obtain policy information, with group
                                                                               numbers and claims processing addresses. In your
The federal government requires all parties to protect                         discovery, determine whether the injured party is a
Medicare, since Medicare is subrogated to all providers,                       recipient of any governmental aid. Explain to the


Summer 2009 OACTA Quarterly Review                                28
    claimant that his or her privacy will be protected,                –   (4) Ask the Agency to Accept the Settlement and
    but that you are bound by law to notify the proper                     Proceed Directly with Claimant’s Counsel by
    agency of any possible liability and payment. Initial                  Obtaining a Written Waiver or Placing the
    correspondence with claimant’s counsel should                          Agency on the Check as a Payee. As a rule, make
    seek to clarify the identity of the lienholder. Most                   all arrangements in writing. The agencies are
    competent plaintiffs counsel are extremely                             usually willing to fax their assent and their demands
    frustrated with the lien issues, and will be happy to                  for settlement. ODHS will typically demand that they
    work with defense counsel and claims                                   be placed on the check as a nominee. A smart
    professionals in resolving liens.                                      plaintiff’s attorney will usually have negotiated a
                                                                           settlement with ODHS before negotiating with the
–   (2) Request a Release for Medical Records/                             adjuster or defense counsel, but verification is
    Expenses. With Medicaid, a specific release for                        necessary.
    medical records is controlled and provided by the
    state, and it must be signed by the claimant, and               • Steps to take and who to contact for Medicare:
    then forwarded to the health care provider which                   –   For claims being settled due to liability insurance
    then produces a statement of medical expenses.                         coverage:
    The state should provide a “final bill”.                                   o    (1) Prepare a letter containing the following
                                                                                    information:
–   The non-Medicaid release should specifically                                        •    (a) Name of Medicare recipient
    identify the governmental unit to whom authority is                                 •    (b) Medicare Number
    given. Informing the agency that there is a pending                                 •    (c) Date of Injury
    settlement should be deemed as a notice of intent                                   •    (d) Description of Injury
    to satisfy the lien. Although there is no statute of                                •    (e) Medical Release Form
    limitations for the claim to be asserted by the                                          (Statement signed by claimant
    government, reasonable notice of settlement is a                                         allowing release of medical
    defense that can be asserted if it fails to identify its                                 information to the insurance
    lien amount and later seeks reimbursement from                                           company)
    the potentially collectible parties of insurers.
                                                                               o    (2) Send to:
–   (3) Inform the Agency or Bureau of the Pending                                      •    Medicare Coordinator of Benefits
    Settlement and Request a Final and Full                                                  Contractor
    Itemization of Medical Expenses for Purposes of                                          P.O. Box 5041
    Settlement. The agencies tend to respond to these                                        New York, NY 10274-5044
    requests. It takes four to six weeks or so to receive                               •    Phone: (800) 999-1118
    a response. It is wise to follow-up with a phone call                               •    Fax: (646) 458-6772
    after four weeks. The statute requires that “No
    settlement, compromise, judgment, or award or any                          o    (3) Medicare then creates a computer file
    recovery shall be made final without first giving the                           on the claim, assigns it to a third party
    appropriate departments notice and reasonable                                   contractor who will contact you.
    opportunity to perfect their rights of recovery.” One
    benefit of going directly to ODHS is that it provides
    an itemization showing that the medical bills were
    significantly reduced due to their payment
    regulations.                                                                                                         CONTINUED


                                                               29
             o   (4) The contractor to whom they assign the          • Steps to take and who to contact for Worker’s
                 claim to is:                                          Compensation:
                      •     MSPRC                                       –   (1) Call Linda Wycuff at 1-614-644-7410
                            P.O. Box 33828                                      o    She is in the Legal Subrogation Department
                            Detroit, MI 48232-3828                      –   (2) Be prepared with the following information
                      •     Phone: (866) 677-7294                               o    (1) Claim Number (Most important piece
                      •     Fax: (734) 957-0998                                         of information!!!)
                                                                                o    (2) Social Security Number (Important if
   –     For Medicare claims being settled where workers’                               you don’t have the claim number)
         compensation coverage exists:                                          o    (3) Date of Injury
             o   This applies to medical bills that have been                   o    (4) Employer
                 paid by Medicare in which Workers                              o    (5) Date of Birth
                 Compensation is primary (Doesn’t apply to                      o    (6) Type of Accident
                 most claims in Ohio)                                   –   (3) Linda will tell you what needs to be done from

             o   Follow the same process as above for                           here…

                 liability claims, but they get sent to a               –   Contact information for the Bureau of Worker’s
                                                                            Compensation:
                 different coordinator and contractor.
                                                                                o    BWC
             o   Send to:
                                                                                     30 W. Spring Street
                      •     P.O. Box 660
                                                                                     Columbus, OH 43215-2233
                            New York, NY 10274-0660
                                                                                o    Telephone: 1-800-644-6292
                 Note that where an out-of-state employer
                                                                                o    Fax: 1-877-520-6446
                 is involved, the Worker’s Compensation
                                                                                o    Website: https://www.ohiobwc.com/
                 coordinator might be different!
                                                                                     default.asp
                                                                        –   Subrogation claims arising from worker’s
       If you get stuck, there is a helpful website:
                                                                            compensation payments are governed by the laws
          http://www.cms.hhs.gov/MSPRGenInfo/
                                                                            of the state in which compensation was paid.
                                                                            American Interstate Ins. Co. v. G & H Service Center,
• Steps to take and who to contact for Medicaid:
                                                                            Inc. 11 Ohio St. 3d 521, 2007-Ohio-608. In Bush v.
   –     Medicaid uses an outside service for their “Tort
                                                                            Senter, 141 Ohio Misc. 2d1, 2006-Ohio-7155 an
         Recovery”, called PCG
                                                                            analysis of the subrogation obligations fails to
   –     Contact Information for PCG:
                                                                            clarify the attorney’s obligation, but discusses
             o   Capital Square
                                                                            settlements and trials.
                 65 E State St, Ste 1530
                 Columbus, OH 43215
                                                                     • Steps to take and who to contact for Federal
             o   Telephone: (614) 242-1045
                                                                      Claims:
             o   Website: https://cmts.pcgus.com/
                                                                        –   Contact the U.S. Department of Labor at:
                 casemgt/Leads/Default.asp                                      o    1-866-487-9243
   –     Commence the process online by entering the claim              –   Ask for the number of the person who handles
         information, or you may call PCG                                   Federal Worker’s Compensation claims in your area
             o   Be sure to have the claim/case number                  –   The numbers for Cleveland area are:
                 when calling!                                                  o    Customer Service: 1-216-357-5100
                                                                                o    Automated System (if you have the claim
                                                                                     number): 1-866-335-8319
                                                                        –   Website: www.dol.gov

Summer 2009 OACTA Quarterly Review                              30
• Alternative contacts with the State of Ohio where                      This places the burden on the third party payee to
one cannot identify the proper agency.                                   resolve the question of how to collect from the
   –   Serve notice to one of the following addresses:                   plaintiff.
           o      Attorney General of Ohio
                  c/o Collections Enforcement Section                –   Why the Right of Recovery? The law was drafted
                  150 E. Gay Street, 21 Floor
                                        st
                                                                         as a response to losses in which the courts had
                  Columbus, OH 43215                                     ruled that ODHS merely enjoyed the rights of the
                                                                         insured party. The Attorney General’s Office argued
           o      Director, Ohio Department of Job and                   for years that the right is an independent cause of
                  Family Services                                        action for reimbursement, not a subrogation right.
                  c/o Office of Legal Services                           The Attorney General had been hampered by
                  30 E. Broad Street, 31 Floor
                                         st
                                                                         statutes deemed by the Courts to be unambiguous
                  Columbus, OH 43215                                     in allowing subrogation rather than an independent
                                                                         cause of action. The state finally listened to its
• What if I do not have any success with the above?                      lawyers and rewrote the law to devise an
   –   Settle with an indemnification agreement which                    independent cause of action.
       binds plaintiff’s counsel. Although this is a fairly
       decent device, it is limited to the ability and               –   Loss of Defenses: A more startling and sneaky
       willingness of plaintiff’s counsel to assume the                  aspect of this statute was that comparative
       obligation.                                                       negligence and all other defenses against the
                                                                         state’s right of recovery are waived if not
   –   Set up a trust in which the proceeds are payable to               established in the underlying case. Defense
       the agency. It is preferable to avoid this device,                counsel will need to establish defenses in the
       since it would entail separate legal expense and                  course of a trial involving the original claimant. The
       may require the engagement of trust counsel.                      only alternative will be settlement with the consent
                                                                         of ODHS, or possibly, some judicial determination of
   –   Do nothing, and let the Claims Department figure it               the defenses that might be used in subsequent
       out when the claim surfaces in the distant future.                litigation.
       Remember, securing a standard release is doing
       nothing.                                                      –   Profiting from Managed Care: Revised Code
                                                                         §5101.58 also provides that the state shall be
• What does the Future Hold for State Subrogation                        reimbursed for the amount the managed care
 Claims?                                                                 organization pays for medical services rendered,
   –   Right of Recovery: In an attempt to simplify the                  even if that amount is more than the amount the
       life of an insurance adjuster, the state legislature              departments pay to the managed care organization
       passed a bill known as House Bill 215. Effective 9/               for the recipient’s medical care. In other words, the
       29/97, Revised Code Section 5101.58, no longer                    state can lay claim to an amount in excess of that is
       discusses a right of subrogation, but provides a right            paid to the managed care organization. Since Ohio
       of recovery. The right of recovery is designed to                 retains no legislative history setting forth the
       mirror the federal independent right of recovery                  reasoning behind the law, no explanation for this
       which is not deemed to be subrogation. In other                   revenue enhancement protocol exists.
       words, the government will no longer be limited to
       the rights and claims of the claimant, but has an
       independent right to collect the medical expenses.                                                              CONTINUED


                                                                31
   –   Exposure to Additional Expenses: “The
       departments shall be permitted to enforce their              Patrick S. Corrigan serves as Managing Attorney
       recovery rights against the third party even though          for the Cleveland Office for the Staff Counsel of the
       they accepted prior payments on discharge of their           Cincinnati Insurance Company. His practice
       rights under this section, if at the time their              includes insurance coverage, construction, and
       departments received such payments, they were                professional tort defense. Mr. Corrigan has
       not aware that additional medical expenses had               presented on insurance law, brain injury defense
       been incurred but had not yet been paid by the               and nursing home malpractice. He earned his B.A.
       departments.” This statutory language has not                degree from John Carroll University and his J.D.
       been challenged.                                             degree from the Cleveland-Marshall College of Law,
                                                                    where he was Chairman of the Moot Court Program.
   –   Authority to Adopt New Rules: Additional                     Mr. Corrigan is a member of the Cleveland
       language in the law allows the ODHS to adopt rules           Metropolitan, Ohio State and Federal Bar
       necessary to implement the revised statute. Thus,            associations, Defense Research Institute, and the
       we can anticipate new regulations governing                  Ohio Academy of Civil Trial Attorneys.
       settlements and liens.


   –   Loss of Sovereign Immunity: Another
       section of H.B. 215, §2744.05(B)(2)(b), effective
       9/29/97 states that nothing shall “prohibit the
       Department of Human Services from recovering
       from the political subdivision pursuant to Section
       5101.58 of the Revised Code, the cost of medical
       assistance benefits provided under Chapter
       5107.5111, or 5115 of the Revised Code.” The
       practical effect of this revision is to eliminate the
       defense of immunity which could be asserted by a
       government employee. Previously, a subrogation
       claim by ODHS was barred when it was made
       against another State of Ohio employee or
       department. This change has the potential
       interesting effect of employing private attorneys to
       defend the various state departments once the
       Attorney General files suit against his/her own
       clients.


   –   Acknowledgement: The author gratefully
       acknowledges the assistance of Angela Drook, Esq.
       in preparing this treatise.




Summer 2009 OACTA Quarterly Review                             32
Ohio Supreme Court: Tort Claims and a New Comity1
                                                    Bruce P. Mandel and James N. Kline
                                                           Ulmer & Berne LLP


                      On October 22, 2008 the Ohio Supreme                 unconstitutional or otherwise invalidated by the Ohio
                      Court held in DiCenzo v. A-Best Products             Supreme Court. See e.g. Morris v. Savoy, 61 Ohio St.3d 684
                      Company, Inc., et al, Slip Op. No. 2008-             (1991); State ex. rel. Ohio Academy of Trial Lawyers v.
                      Ohio-5327, that its seminal decision in              Sheward, 86 Ohio St. 3d 451 (1999).4 However, since
                      Temple v. Wean United, Inc., (1977) 50               Sheward, the Ohio legislature has undertaken a host of new
                      Ohio St.2d 317, which for the first time             tort reform measures which have, thus far, withstood any
 Bruce P. Mandel      found suppliers (non-manufacturers)                  constitutional scrutiny.
                      liable in common law strict tort liability,
                      could not be applied retroactively to                                    Apportioned Liability
                      conduct which occurred prior to the
                      Temple decision. The DiCenzo decision                The newest tort reform measures largely began with Senate
                      effectively undermined the ability of                Bill 120 (“S.B. 120”),5 which became effective April 9,
                      plaintiffs, particularly in asbestos                 2003. S.B. 120 largely eliminated “joint and several
                      litigation, to sue non-manufacturer                  liability” in Ohio, which had previously rendered even the
  James N. Kline      (supplier/installer/distributor)                     most remote defendant potentially responsible for the
                      defendants, whose underlying sale or                 entirety of a judgment. In its stead, S.B. 120 introduced
installation of products predated the 1977 decision in                     apportioned liability. Similar to other States which had done
Temple.                                                                    so beforehand, these statutes provide that if a defendant’s
                                                                           liability is 50% or less of the tortious conduct, that defendant
DiCenzo was the most recent in a string of Ohio Supreme                    is essentially liable only for its proportionate share of
Court decisions since 2002, which have demonstrated a                      damages.6 Moreover, O.R.C. §2307.011 defines broadly
change from an aggressive Court, deemed a “super-                          the persons or entities against whom apportioned shares
legislature on several major public policy issues in Ohio”, to 2
                                                                           may be attributable, thus allowing a jury to view the whole
a Court which appears to have restored a reasonable                        picture of causative agents, and in the context of toxic torts,
balance of power between itself and the Ohio Legislature.                  occupational exposures and apportion any judgment
No longer in the business of expanding tort liability and                  accordingly.7
striking down tort reform efforts, the Court has now shown
deference to tort reform legislation, intended to reign in                 Then in May, 2003, an even more comprehensive tort
further expansion of tort liability.   3
                                                                           reform act, Amended Substitute Senate Bill 80 (“S.B. 80”),
                                                                           was adopted, and became effective on April 7, 2005. S.B.
          The following discussion of recent Ohio legislative              80 imposed caps on damages, and reintroduced a Statute
enactments and corresponding Ohio Supreme Court rulings                    of Repose, after prior Statutes of Respose had been found
illustrates this judicial restraint and cessation of tort liability        unconstitutional.
expansion.
                                                                                                      Damage Caps
                        I. Tort Reform
                                                                           S.B. 80 capped non-economic (pain and suffering) loss in
Between 1975 and 2002, the Ohio Legislature enacted                        non-catastrophic injury cases to the greater of $250,000 or
numerous tort reform measures, all of which were found
                                                                                                                                   CONTINUED


                                                                      33
three times the amount of economic damages up to a cap                   directly controlling”. Groch at ¶147. The Court, therefore,
of $350,000 per plaintiff and $500,000 per occurrence.          8
                                                                         upheld the constitutionality of this Statute of Repose for
Similarly, S.B. 80 capped punitive damages to two times the              products and presumably would do so for the new Statute of
amount of compensatory damages awarded, or even less if                  Repose for improvements to real property.
the defendant is deemed a “small employer” as defined in
the statute.9                                                            The Supreme Court, therefore, isolated Brennaman,
                                                                         indicating it would no longer apply the case or its holding.
As expected, S.B. 80 and its limitations on damages were                 The apparent basis for this isolation also relates to
constitutionally attacked. However, the Ohio Supreme Court               “changes” in the new Statute of Repose, that differentiate it
in Arbino v. Johnson & Johnson, (2007), 116 Ohio St.3d                   from the statute that had been stricken in Brennaman —
468, 2007-Ohio-6948, upheld the statutory limitations                    including new provisions in the uncodified section
discussed above. While recognizing that “. . . State                     establishing the propriety and constitutionality of the
legislatures and judiciaries have differed widely in their               application of the Statute of Repose for improvements to
responses to this issue, and a definite split in authority is            real property.
clear. . .” (Arbino, ¶20). After years of the Ohio Supreme
Court undermining such legislation, it was finally deemed                The Supreme Court in Groch invoked with approval its
constitutional in Arbino.   10
                                                                         previous reasoning in Sedar (“Although Sedar was a
                                                                         thorough and concise opinion that fully sustained each of its
                      Statutes of Repose                                 specific conclusions with extensive reasoning, Brennaman is
                                                                         the classic example of the “arbitrary administration of
S.B. 80 also included ten year Statutes of Repose for                    justice” that Galatis [Westfield Insurance Co. v. Galatis
products (O.R.C. §2305.10(C)) and for improvements to
                                 11
                                                                         (2003), 100 Ohio St.3d 216, regarding stare decisis]
real property (O.R.C. §2305.131). These new Statutes of                  cautions against. Brennaman cavalierly overruled Sedar with
Repose expressly provide that they are superior to any                   virtually no analysis.” Groch, ¶136-137). Other Courts have
applicable Statute of Limitations. As part of similar tort
                                      12
                                                                         recognized that in Groch, the Ohio Supreme Court has
reform efforts over the years, the Ohio Legislature had                  resurrected Sedar’s analysis with respect to statutes of
enacted prior Statutes of Repose, but they were summarily                repose. See Nickell v. Leggett & Platt, Inc. (12th Dist. 2008),
rejected and found unconstitutional by the Ohio Supreme                  2008 Ohio 5545; Metz v. Unizan Bank (N.D. Ohio 2008),
Court. See e.g. Brennaman v R.M.I. Co. (1994) 70 Ohio St.                2008 U.S. Dist. LEXIS 37270; Lopardo v. Lehman Bros., Inc.
3d 460. However, a constitutional challenge to the new                   (N.D. Ohio 2008), 548 F. Supp. 2d 450, 2008 U.S. Dist.
Statute of Repose for products was recently rejected and the             LEXIS 17377.
Statute upheld in Groch v. General Motors Corp. (2008),
2008 Ohio 546.                                                           These cases that have followed in the wake of Groch have
                                                                         applied its reasoning. More recently, the Court of Appeals in
In Groch, the Ohio Supreme Court discussed its earlier                   McClure v. Alexander (2nd Dist. 2008), 2008 Ohio 1313
decision in Brennaman v. R.M.I. Co. (1994) 70 Ohio St.3d                 concluded that Ohio’s new Statute of Repose for
460, which had overruled an earlier case, Sedar v. Knowlton              improvements to real property is constitutionally viable and
Construction Co. (1990), 49 Ohio St.3d 193. Sedar had                    applicable so as to bars claims. In McClure, the Court held:
upheld a prior Statute of Repose dealing with improvements
to real property, but Brennaman reexamined the same issue                         Finally, we examine the particular features of
and struck it down. In Groch, the Ohio Supreme Court                              R.C. 2305.131 to resolve the issue before us,
recognized the deficiency in its reasoning in Brennaman,                          namely whether, as McClure argues, the
and while not expressly overruling Brennanman, declined “to                       doctrine of stare decisis requires us to strike
follow its unreasoned rule in contexts in which it is not                         down the current version of the statute of


Summer 2009 OACTA Quarterly Review                                  34
repose. In other words, we must determine                       Groch, at P 106, quoting Arbino. In other
whether or not the current version of R.C.                      words, Brennaman is not directly controlling.
2305.131 is “substantially the same” as the
previous version overruled in Brennaman, the           McClure, supra. (Emphasis added). As a result, the McClure

“unreasoned rule” of which remains in                  Court applied and ebforced the latest statute of repose for
constricted effect[based on Groch].                    improvements to real property.


The previous version of the statute provided in        Based upon the application of similar statutes in other
part, “no action * * * shall be brought,” while        jurisdictions, this new Statute of Repose for improvements
the current version, like the constitutional           to real property may provide significant assistance to many
statute of repose in Groch, provides in part,          types of defendants. See generally, Adair v. Koppers Co.
“no cause of action * * * shall accrue.” We            (N.D. Ohio, E.D. 1982), 541 F.Supp. 1120, aff’d by (6th Cir.
agree with Alexander, the “current                     1984), 741 F.2d 111 (conveyor belt held to be
version of R.C. 2305.131 recognizes that               improvement to property); Pacific Indemnity Co. v.
a true statute of repose actually                      Thompson-Yaeger, Inc. (Minn. 1977), 260 N.W.2d 548
prevents a cause of action from                        (furnace installed in a store deemed an “improvement to
accruing rather than preventing a                      real property”, but statute ruled unconstitutional); Herriott v.
plaintiff from bringing an action after                Allied Signal, Inc. (7th Cir. 1993), 998 F. 2d 487 (coke
accrual,” like a statute of limitation. As             processing plant’s “larry-car” was an improvement to real
noted by the Groch Court, the legislature              property for purposes of a 10-year Statute of Repose); Krull
is free to modify or abolish common law                v. Thermogas Co. of Northwood, Iowa, Div. of Mapco Gas
actions in which no one has a vested                   Products, Inc. (Iowa 1994), 522 N.W.2d 607 (small control
right; by its language, the current                    valve on a liquid propane furnace held to be an
version of R.C. 2305.131 “can prevent                  improvement to real property); Harder v. ACandS (8th Cir.
claims from ever vesting [if the                       1999), 179 F.3d 609 (Statute of Repose barred claim for
improvement was substantially                          asbestos exposure from thermal blankets which were
completed] more than ten years before                  attached but not permanently affixed to turbines); Tallman v.
the injury occurred.” Id., at P 149. In                W.R. Grace Co. (Iowa 1997) 558 N.W.2d 208 (once
other words, McClure’s cause of action                 asbestos containing spray was affixed to structure, it was an
against Alexander never accrued, and it                improvement to real property subject to Statute of Repose);
accordingly never became a vested                      Abbott v. John E. Green Co. (Mich. App. 1998), 592 N.W.2d
right. As in Groch, “this feature of the               96 (Statute of Repose applied to installers of asbestos
statute triggers the portion of Sedar’s                containing products); Pendzsu v. Beazer East, Inc. (Mich.
fundamental analysis concerning                        App. 1996), 557 N.W.2d 127 (design, manufacture,
Section 16, Article I that is dispositive of           installation and relining of coke ovens and the engineering
our inquiry.”                                          and relining of blast furnaces considered improvements to
                                                       real property); Trust Co. Bank v. U.S. Gypsum Co. (5th Cir.
                      ***                              1992), 950 F.2d 1144 (fireproofing materials used in bank
                                                       construction subject to Statute of Repose); But see Buttz v.
Having carefully reviewed the particular
                                                       Owens-Corning Fiberglas Corp. (Iowa 1996), 557 N.W.2d 90
features of R.C. 2305.131, we conclude that
                                                       (exposure to insulation during installation process was not
it is sufficiently different from the previous
                                                       subject to Statute of Repose).
version considered in Brennaman “to avoid
the blanket application of stare decisis.”
                                                                                                              CONTINUED


                                                  35
    II. Asbestos Medical Impairment Legislation/                              procedure to prioritize the administration
                      Court Challenges                                        and resolution of a cause of action that
                                                                              already exists”. (Id. at ¶16)
In June, 2004, the Ohio Legislature passed a medical
impairment asbestos statute (Amended Substitute House                Bogle was a precursor to the October, 2008 Ohio Supreme
Bill 292 [“H.B. 292”]) which became effective on                     Court decision in Ackison which upheld the constitutionality
September 2, 2004.    13
                           It essentially placed, in                 of the retroactivity provisions in H.B. 292, rendering the
administrative dismissal purgatory, virtually all non-               statute applicable to the tens of thousands of claims
malignant cases until and only if those claimants meet the           pending in Ohio on the effective date of the statute. Relying
medical criteria establishing legitimate disease. H.B. 292           upon Bogle, the Court in Ackison held that:
also created legislative hurdles for any asbestos lung cancer
claimant who had been a significant cigarette smoker.                         “The requirements in R.C. 2307.91,
                                                                              2307.92, and 2307.93 are remedial and
In short, the purpose of H.B. 292 was to limit the glut of                    procedural and may be applied without
medically questionable asbestos cases clogging the dockets                    offending the Retroactivity Clause of the
in Ohio, particularly in the Cleveland (Cuyahoga County)                      Ohio constitution to cases pending on
area. Plaintiffs attacked the new asbestos legislation                        September 2, 2004.” Ackison at the
largely on the basis of its retroactive effect, but the Ohio                  syllabus.
Supreme Court upheld H.B. 292’s constitutionality in two
cases: Norfolk v. Bogle (2007) 115 Ohio St.3d 455;                   The plaintiff in Ackison argued that the legislation had an
Ackison v. Anchor Packing Company, 2008 Ohio 5243.                   unconstitutionally retroactive impact because it barred
                                                                     claims like those of her decedent for pleural thickening
In Bogle, the Ohio Supreme Court held, in the context of an          which had previously been classified as a compensable
asbestos claim brought under the Federal Employer’s                  injury under common law. The Court rejected this argument,
Liability Act and the Locomotive Boiler Inspection Act, that         finding instead that there was no common law definition of
the Ohio asbestos tort reforms in H.B. 292 did not violate           injury. Since there had been no fixed definition of injury
the Supremacy Clause of the United States Constitution               adopted by the courts of Ohio, the legislature was free to
since the filing requirements were procedural in nature, and         establish that definition by means of H.B. 292. Thus, the
thus could be imposed on the plaintiffs. As they were                Court found that plaintiff had no vested right in earlier court
procedural, they did not impair the Federal rights upon which        definitions of asbestos-related injury. Moreover, the Ohio
plaintiffs’ claims were based. The Court stated:                     Supreme Court held that the legislation did not extinguish
                                                                     the right to recovery, but merely “caused a hold to be placed
         “[S]ubstantive laws or rules are those that                 on the claim….” Ackison, ¶27.
         “relate[] to rights and duties which give rise
         to a cause of action.” By contrast,                         The Court in Ackison also rejected plaintiff’s argument that
         procedural rules concern “the machinery                     the statute, by defining the term “competent medical
         for carrying on the suit.” Id. A review of the              authority” and mandating that such medical authority be
         statutes reveals that they do not grant a                   used to prove medical impairment, impermissibly altered
         right or impose a duty that “give[s] rise to a              the burden of proof placed upon a claimant. Again, the
         cause of action.” Id. Instead, the impact of                Court found that there was no prior established definition of
         these statutes is to establish a procedural                 this term either by statute or common law. The legislature
         prioritization of the asbestos-related cases                was, therefore, free to establish this definition in the same
         on the court’s docket. Nothing more.                        manner that it could establish a rule of competency
         Simply put, these statutes create a                         governing any expert witness testifying in court. This again


Summer 2009 OACTA Quarterly Review                              36
fell into the realm of procedural, rather than substantive              non-manufacturer defendant suppliers, installers and
issues, and thus was a permissible exercise of legislative              distributors of asbestos-containing products prior to 1977
power. Ackison, ¶29.                                                    could not be sued under common law principles of strict
                                                                        liability. Since most asbestos products were sold or installed
The plaintiff also asserted that H.B. 292 altered the                   prior to 1973, this effectively undermined the ability of most
requirements of causation by defining “substantial                      asbestos plaintiffs to sue non-manufacturers in Ohio in
contributing factor,” and including a requirement that                  common law strict tort liability, relegating them to claims of
“[E]xposure to asbestos is the predominate cause of the                 negligence.
physical impairment alleged in the asbestos claim.” O.R.C.
§2307.91(FF) (1). Plaintiff argued that this contravened                Previously, in Potts v. 3M Company, et al.,16 the Ohio 8th
the Court’s earlier decision in Horton v. Harwick Chem. Corp.           District Court of Appeals affirmed the Trial Court ruling and
(1995), 73 Ohio St.3d 679, which established the                        rejected a plaintiff’s attempt, under Ohio’s Product Liability
“substantial factor” test for causation. The Court wrestled             Act17, to utilize statutory strict liability claims against
with the term “predominate cause,” but ultimately                       suppliers. The Ohio Court of Appeals held that statutory
interpreted it as a “but for” test of causation — which was             strict liability was not available against a supplier under the
consistent with previous court decisions — so as to uphold              two commonly proffered elements of the statute in asbestos
the constitutionality of the legislation. Ackison, ¶49. The             litigation.18 First was “insolvency” of the manufacturer. The
Court in Ackison explained that Horton merely addressed                 Court rejected plaintiff’s claim that bankruptcy was the
the applicable burden of proof in a multiple defendant case,            equivalent of insolvency and held that if any Bankruptcy
but at their core, both Horton and the statute involved a “but          Trust from the numerous asbestos manufacturer
for” test. Ackison, ¶51.                                                bankruptcies paid monies to claimants, that manufacturer
                                                                        could not be deemed “insolvent” for purposes of the Ohio
Finally, the court rejected plaintiff’s view that the definition        statute.
of “substantial occupational exposure” in O.R.C.
§2307.91(GG) was an impermissible attempt to introduce                  Second, the Court held that claimed “lack of judicial
the so-called Lohrmann criteria and apply them
                                  14
                                                                        process” as to the manufacturer, did not apply to currently
retroactively in contravention of the Court’s previous                  bankrupt entities which had previously been subject to long
decision in Horton, supra which had expressly rejected these            arm jurisdiction in Ohio.19
criteria. The Court in Ackison again held that the new
statutory criteria were simply a means of “procedural                   The plaintiff in Potts attempted a discretionary appeal to the
prioritization,” and did not alter the burden of proof for              Ohio Supreme Court but the Court rejected the appeal, and
existing claims. According to the Court, the express                    let stand the favorable rulings by the Trial Court and Court of
inclusion of the Lohrmann criteria in a different portion of            Appeals severely limiting statutory strict liability claims in
the new law underscored this differentiation between an
             15
                                                                        Ohio against non-manufacturers. The plaintiffs’ Bar then
effort at prioritizing claims and actually altering the                 went to “Plan B” and attempted to assert common law
substantive elements for establishing causation. As for this            strict liability claims which resulted in the recent DiCenzo
latter issue, the Court noted that the adoption and                     Opinion.
application of the Lohrmann criteria in the statute was
explicitly prospective, and thus constitutional. Ackison, ¶61.          DiCenzo stemmed from the supplier defendants being sued
                                                                        for having sold or installed asbestos-containing products
  III. Rejection of Strict Liability Against Suppliers                  from the 1950s to the early 1970s. By the 1990s, most of
                                                                        the major manufacturers of those products had filed for
         During the same week Ackison was decided, the                  bankruptcy due to the onslaught of the asbestos litigation
Ohio Supreme Court decided the DiCenzo case, holding that                                                                   CONTINUED


                                                                   37
and thus could not be sued by plaintiffs, whose disease took                         “Imposing such a potential financial burden
decades to manifest. Accordingly, the plaintiffs’ Bar pointed                        on these nonmanufacturing suppliers years
their guns at mere suppliers/installers of asbestos products.                        after the fact for an obligation that was not
They sued suppliers based upon the 1977 Temple v. Wean                               foreseeable at the time would result in a
decision, which first adopted common law strict liability                            great inequity.” DiCenzo, at ¶47.
against non-manufacturers. These claims of common law
strict tort liability would, in effect, force the suppliers to            Importantly, the ramifications of the Ohio Supreme Court
defend a product manufactured by another. However, by                     decision should not be limited only to suppliers of asbestos
disallowing strict tort liability against the suppliers, the Court        products. Common law strict liability claims will now also be
would relegate plaintiffs to negligence claims against the                obviated against pre-1977 sellers of other products (such as
suppliers. As these negligence claims would be based upon                 benzene, silica and lead paint) that may have contributed to
the suppliers’ knowledge of the alleged product hazards,                  a disease that also did not manifest itself until years later.
they would be more defensible than claims for strict tort                 Similarly, suppliers of materials and components that
liability, which are based upon the allegedly defective                   became parts of commercial buildings more than 30 years
product.                                                                  ago may also be protected from common law strict tort
                                                                          liability claims, should those materials eventually be
The inquiry in DiCenzo was whether Temple v. Wean was to                  deemed defective.
be applied retroactively to impose common law strict liability
upon suppliers. To decide the retroactivity issue, the Ohio                                            Conclusion
Supreme Court in DiCenzo dealt with the applicability of the
elements set forth in the United States Supreme Court                     The foregoing decisions by the Ohio Supreme Court have
decision in Chevron Oil Co. v. Huson (1971), 404 U.S. 97,                 demonstrated the substantial change in what had been an
92 S. Ct. 349, 30 L. Ed. 2d 296. The first issue in this regard           “activist” Court — constantly striking down legislative
was whether Chevron Oil, dealing with the prospective or                  attempts at tort reform and expanding tort liability — to a
retroactive nature of Court rulings, had been overruled by                Court with a more reasoned, fair, and legislatively respectful
Harper v. Virginia Dept. of Taxation (1993), 509 U.S. 86,                 approach.20 As a result of recent Ohio legislation and the
113 S. Ct. 2510, 125 L. Ed. 2d 74. The Ohio Supreme Court                 Ohio Supreme Court’s change in attitude, the landscape in
ultimately decided that Harper did overrule Chevron Oil but               Ohio for businesses and product liability defendants has
only when applying Federal law. According to the DiCenzo                  been improved considerably.
Court, Chevron Oil remains viable for purposes of analyzing
State law in Ohio. The Ohio Supreme Court then adopted
Chevron’s analytical framework for purposes of determining
the retroactive or prospective application of a Court decision            Endnotes
                                                                          1
                                                                              The following article is an expanded version by the same authors
and, specifically in DiCenzo, dealt with the issue of whether                 that was originally published in The Legal Backgrounder,
                                                                              Washington Legal Foundation, Volume 24, No. 3, January 2009,
or not the 1977 decision in Temple v. Wean — in which                         “Ohio Supreme Court Upholds Limits On Product Liability Suits.”
strict liability against suppliers (non-manufacturers) was
                                                                          2
                                                                              See David J. Owsiany, The Ohio Supreme Court: A Court at the
                                                                              Crossroads (Federalist Society for Law & Public Policy, October
“born” in Ohio — should be applied retroactively, as plaintiffs               2004 at p. 1-2), available at http://www.fed-soc.org/doclib/
                                                                              20070325_ ohio.pdf.
claimed.                                                                  3
                                                                              For a detailed discussion of the changes in the Ohio Supreme
                                                                              Court’s personnel and philosophy, See Jonathan H. Adler and
                                                                              Christina M. Adler, “A More Modest Court: The Ohio Supreme
Ultimately, the Ohio Supreme Court determined that it would                   Court’s New Found Judicial Restraint”, (Federalist Society for Law
                                                                              & Public Policy Studies, October, 2008 at p. 3).
be inequitable to impose the Temple decision on non-                      4
                                                                              For a more complete discussion of this tort reform history, see
manufacturing suppliers of asbestos products that sold or                     Tunnel, Sferra, and Motter, “Ohio High Court Upholds Law Limiting
                                                                              Tort Damages,” The Legal Backgrounder, Washington Legal
installed those products prior to the Temple decision,                        Foundation, Volume 23, No. 6, February, 2008.
                                                                          5
                                                                              Enacted as O.R.C. §§2307.22, 2307.23 and related §2307.11.
holding:


Summer 2009 OACTA Quarterly Review                                   38
6
     Where it is determined that more than 50% of tortious conduct is
     attributable to a defendant, then that defendant is jointly and
     severally liable for the entire economic loss. See O.R.C.                    As a partner with Ulmer & Berne LLP with over 20
     §2307.22(A)(1) and §2307.011.
7
     As defined by the Trial Judges who administer the special asbestos           years of experience, Jim Kline focuses his practice
     docket in Cleveland, this includes non-parties such as the                   on negligence, product liability defense, toxic tort,
     approximately 85 former manufacturers of asbestos products who
     have filed for bankruptcy protection.                                        first-party insurance defense litigation, employer
8
     O.R.C. §2315.18.
9
     O.R.C. §2315.21.                                                             intentional tort, commercial and construction related
10
     For a more comprehensive discussion of the Arbino decision and               claims. He litigates in federal and state trial courts,
     the legal arguments therein, see the article cited in Footnote 3
     above.                                                                       as well as state appellate court. His clients include
11
     The Statute of Repose for products expressly exempts claims
     based upon exposure to asbestos.                                             insurers, manufacturers, major national retailers,
12
     Ohio has a two year statute of limitation for general tort actions           major national restaurants, premises owners,
     (O.R.C. §2305.10(A)). A “discovery rule” applies to claims based
     on asbestos exposures (O.R.C. §2305.10(B)(5)), as well as other              contractors, not-for-profit organizations and
     toxic exposures (O.R.C. §2305.10(B)(1-4)). Under the“discovery
     rule” set forth in each of these provisions, the cause of action             municipalities.
     “accrues upon the date on which the plaintiff is informed by
     competent medical authority that the plaintiff has an injury that is
     related to the exposure, or upon the date on which by the exercise
     of reasonable diligence the plaintiff should have known that the
     plaintiff has an injury that is related to the exposure, whichever           A partner with Ulmer & Berne LLP and Chair of the
     date occurs first.“                                                          Firm’s Toxic Tort Defense Group, Bruce Mandel
13
     The Legislature contemporaneously promulgated a similar
     medical impairment statute for silica cases (H.B. 342), but without          defends all types of industrial exposure cases. He
     a provision explicitly deeming it retroactive, unlike the asbestos
     statute.                                                                     administers and defends asbestos and silica claims
14
     These criteria were adopted in the case of Lohrmann v. Pittsburgh            for numerous clients in both federal and state courts.
     Corning Corp. (4th Cir.1986), 782 F.2d 1156, in which the Court
     required a plaintiff to establish “exposure to a specific product on         He has more than 30 years of experience in
     a regular basis over some extended period of time in proximity to
     where the plaintiff actually worked.” Id. at 1162-1163.                      defending product liability claims, handling bodily
15
     O.R.C. §2307.96.                                                             injury claims for both plaintiffs and defendants, and
16
     2007 Ohio 1144; 2007 Ohio App. Lexis 1057.
17
     O.R.C. §2307.78(B) set forth the limited bases upon which                    representing owners, architects, and contractors in
     suppliers could be subject to strict liability as if a manufacturer.
18
     See O.R.C. §2307.78(B)(1) and (2).                                           construction litigation cases. He also has extensive
19
     Plaintiff claimed that “lack of judicial process” was the equivalent         experience in major business litigation as well as
     of “lack of service” but the Court disagreed, siding with the
     supplier defendant in defining “lack of judicial process” as “lack of        successfully mediating business and real estate
     jurisdiction”. Since the bankrupt manufacturers had done
     business in Ohio, they had been subject to long arm jurisdiction,            disputes.
     and thus there was no “lack of judicial process”.
20
     This new deference to legislative intent may even be
     demonstrated in Eppley v. Tri-Valley Local School Dist. Bd. Of Ed.
     (2009), 2009-Ohio-1970, where that legislative intent is
     unexpressed. In Eppley the Ohio Supreme Court held that
     differences between Ohio’s so-called “Saving Statute” for wrongful
     death claims, O.R.C 2125.04, and for general claims, O.R.C.
     2305.19 (A) — the latter of which was amended in 2004 to expand
     the savings period for refiling previously dismissed claims — did
     not violate the right to equal protection of the law under the
     Fourteenth Amendment to the United States Constitution and
     Section 2, Article I of the Ohio Constitution.




                                                                             39
                                      Introduction
                            Personal Injury Defense Committee
                                                         ...CONTINUED FROM PAGE 2


This year also saw the birth of our committee web page                   Ohio Revised Code section 2317.421, to include “anti-
located at the OACTA website (www.OACTA.org). Currently,                 Robinson” language.)
you can find there a catalogue of the various decisions of
the trial courts on the issues we have all come to know as               So as always, tort law in Ohio keeps evolving and changing.
the “Robinson v Bates,” conundrum. The decisions are listed              Our effort at OACTA is to share information with and among
by county and judge, with an indication of whether the                   the membership that keeps all of us current, and if we’re
opinion was “for” or “against setoff” and whether it was                 lucky, perhaps one step ahead of that change.
“pre” or “post” enactment of the new collateral source
statute, 2315.20. In this Quarterly, Mark Engling has                    Finally, I would like to thank Jamey Pregon for his
provided a fine review of the issues and arguments at the                outstanding contribution to this committee. Jamey has
center of the “Robinson Debate.” In the interest of staying up           served as coordinator/editor for this edition of the Quarterly
to date on this topic, it should be noted that the decision of           and authored an informative article himself, on top of
the Lucas County Court of Appeals cited in Mark’s piece                  opening his own law office in Dayton — Dinkler Pregon, LLC.
(Jacques v Manton, March 20, 2009; Case No: L-08-1096)                   I know our committee will be in good hands when he
has recently been appealed to the Ohio Supreme Court. It is              assumes the chair at our Annual Meeting in November. I
possible the Ohio Supreme Court will settle the issues once              hope you will find the information we provide here, and
and for all. (However, it should also be noted that certain              through the seminars and the web page to be useful in your
prominent members of the Plaintiffs’ bar have recently                   practice, and I hope to see many of you at State Auto in
introduced proposed legislation in the Ohio House to amend               August.




Summer 2009 OACTA Quarterly Review                                 40
                                                       A G E N D A and S P E A K E R S
                                             8:00 – 8:25 am     Registration / Continental
                                                                Breakfast / Exhibits Open
                                             8:25 – 8:30 am     Welcome
                                                                Gretchen Koehler Mote, Esq.,
                                                                OACTA President
                                             8:30 – 9:00 am     “The Presence of Third Parties and Videotaping
                                                                of Independent Medical Examinations”
                                                                Matthew J. Smith, Esq.,
                                                                Smith, Rolfes & Skavdahl Co., LPA
                                             9:00 – 9:30 am     “Tips and Traditions in Personal Injury Defense”
                                                                Terrence J. Kenneally, Esq.,
                                                                Terrence J. Kenneally & Associates
                                             9:30 – 10:00 am    “Tort Reform in Ohio – an Update”
                                                                Victoria D. Barto, Esq.,
                                                                Sutter, O’Connell, Mannion & Farchione
                                             10:00 – 10:15 am Break with Exhibitors
                                             10:15 – 10:45 am “Investigating the Personal Injury Claim”
                                                              Robert Friedrick, Friedrick & Associates, Inc.
                                             10:45 – 11:15 am “Personal Injury Litigation Ethics”
                                                                Lawrence A. Sutter, III, Esq.,
                                             Sutter, O’Connell & Farchione
                                             11:15 – 11:45 am “Civility in Personal Injury Practice –
                                                              A View from the Other Side”
                                                              Donald C. Moore Jr., Esq.,
                                                              The Moore Law Firm
                                             Noon – 1:00 pm     LUNCH – Derby Court,
                                                                Columbus Museum of Art
                                                                LUNCHEON ADDRESS:
                                                                Justice Maureen O’Connor,
                                                                Supreme Court of Ohio
                                             1:15 – 2:00 pm     “The Art and Science of Civil Litigation –
                                                                A View from the Bench”
                                                                Honorable Christopher Collier,
                                                                Medina County Court of Common Pleas
                                             2:00 – 2:30 pm     “Personal Injury Litigation Strategy and Tactics”
                                                                Richard Kerger, Esq.,
                                                                Kerger & Hartman, LLC
        August 28, 2009                      2:30 – 3:00 pm     “Personal Injury News from the Statehouse”
                                                                Brian P. Riley, Esq., Weston Hurd, LLP
           State Auto                                           Jon Allison, State Auto Insurance Companies
      Insurance Companies                    3:00 – 3:15 pm     Break with Exhibitors

           Columbus                          3:15 – 3:45 pm     “The View from Claims –What We Want
                                                                From Defense Counsel”
                                                                PANEL DISCUSSION:
                                                                Steve Miller, State Auto Insurance Companies
Register Online at www.OACTA.org                                Steve Popelsky, Esq., Motorists Mutual
                                                                    Insurance Companies
                                                                Barbara Brown, Motorists Mutual
                                                                    Insurance Companies
                         Ohio                                   Randy Anderson, State Farm Mutual Auto
                    Association                                     Insurance Company
                    of Civil Trial
   OACTA              Attorneys
                                             3:45 – 4:15 pm     “Independent Medical Examination –
                                                                Its Uses and Limits”
                                                                Manuel A. Martinez, M.D.,
            The Source for Defense Success                      Orthopedic Associates
                                             4:15 pm            Adjourn
                         Ohio
                    Association
                    of Civil Trial
OACTA                 Attorneys

            The Source for Defense Success

 17 South High Street, Suite 200
     Columbus, Ohio 43215




                     Ohio Association of Civil Trial Attorneys
                2009 Second Annual Meeting
                                 November 12 & 13, 2009
                                             The Westin Columbus
                                                  Columbus




         Situated in the heart of downtown Columbus, the newly-renovated Westin Columbus
               is a hospitality landmark. Experience the grandeur and elegance of their
                         stunning Grand Ballroom, the city’s premier event site.

								
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