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									February 2005                                                                The Metropolitan Corporate Counsel                                                                                  Page 33

    Civil Justice Reform – Law Firms
                                 Ohio Tort Reform. A Roadmap For Success?
                                                                By Richard D. Schuster and Thomas R. Winters
          The Ohio General Assembly has strug-                                                                                                           Law Design Defect Actions. The new law
      gled with the tort beast for nearly 30                                                                                                             also eliminates common law negligent
      years, since the Medical Malpractice Cri-                                                                                                          design actions and the consumer expecta-
      sis of the late 1970s when many profes-                                                                                                            tion test as a stand-alone test for statutory
      sional insurance carriers suddenly                                                                                                                 design defect causes of action. In its
      stopped writing malpractice insurance for                                                                                                          place, S.B. 80 creates an additional factor,
      surgeons and obstetricians.                                                                                                                        which requires a “reasonable alternative
          On January 6, 2005, however, Gover-                                                                                                            design” analysis, to be considered in the
      nor Bob Taft signed into law Amended                                                                                                               risk-utility test.9
      Substitute Senate Bill 80 (“S.B. 80”) –                                                                                                                Obesity Provisions. S.B. 80 provides
      Ohio’s most recent attempt to unravel this                                                                                                         immunity from civil damages to food
      proverbial Gordian knot.1 S.B. 80 is a                                                                                                             manufacturers, sellers, and trade associa-
      comprehensive bill that attempts to bal-                                                                                                           tions for claims resulting from a person’s
      ance the interests of both plaintiffs and                                                                                                          obesity or weight gain or any health con-
      defendants. It also attempts to bolster                                                                                                            dition related to obesity, weight gain, or
      Ohio’s economic competitiveness by                                                                                                                 cumulative consumption.10
      eliminating what some legislators                                                                                                                      Successor Liability Immunity. The new
      believed were frivolous personal injury                                                                                                            law also limits the successor asbestos-
      lawsuits and checking conditions that                                                                                                              related liabilities of certain corporations.11
      have lead to skyrocketing liability insur-               Richard D. Schuster                               Thomas R. Winters                           Collateral Source Rule Modification.
      ance costs.                                                                                                                                        S.B. 80 additionally allows a jury to hear
                                                                                                                                                         evidence about collateral benefits in all
                  The Long History                   Assembly for passing a bill that included            If the jury decides to award punitive          tort actions (if the plaintiff has received
                Of Ohio Tort Reform                  numerical caps after the Supreme Court            damages from a large employer (greater            compensation for his/her injuries from
          The Ohio General Assembly first tack-       had already declared them to be unconsti-         than 100 full-time nonmanufacturing               sources other than the defendant,
      led tort reform in 1975. That law capped       tutional.                                         employees or 500 manufacturing employ-            although it won’t apply to life/disability
      noneconomic (pain and suffering) dam-              The Court also rejected the other por-        ees), then the recovery will be capped at         insurance policies purchased by the plain-
      ages in medical malpractice cases. Six-        tions of the 1997 omnibus bill – including        two times the amount of compensatory              tiff or the plaintiff’s employer).12
      teen years later, however, the Ohio            caps on contingency fees, caps on puni-           damages. Punitive jury awards against                 Agricultural Immunities. S.B 80 pro-
      Supreme Court, in a 5-1 decision, over-        tive damages, and a statute of repose for         small employers or individuals, however,          vides immunity for owners, lessees, and
      turned the 1975 law as unconstitutional.2      certain actions – stating that they violated      will be limited to the lesser of two times        renters of premises that are open to the
      The Court found the caps violated the          the Ohio Constitution’s Due Process, Sep-         compensatory damages, 10% of the                  public for “Pick Your Own” agricultural
      Ohio due process clause because the caps       aration of Powers, and Single Subject             employer’s or individual’s net worth, or          produce.13
      were arbitrary – they did not bear any         Clauses.                                          $350,000. No matter the size of the defen-            Recreational Trail Immunities. This
      relation to malpractice insurance rates.                                                         dant, punitive damages usually will be            law also provides that property owners
          Then, in 1985, as a result of the can-     Ohio’s Latest Tort Reform Bill                    awarded against a defendant only once for         with land adjacent to recreational trails do
      cellation of 4th of July fireworks celebra-   This time around, however, has been                 the same act or conduct.                          not owe a duty to users of those recre-
      tions throughout rural Ohio towns (mostlydifferent. S.B. 80 reflects a more sound                                                                   ational trails to keep the trails safe. S.B 80
      the result of the inability of local govern-
                                               understanding of why the previous bills                 Changes To Composition
                                                                                                             Of The Court                                amends Ohio law to provide immunity for
      ments to obtain affordable liability insur-
                                               were declared unconstitutional. More-                                                                     private property owners for injuries suf-
      ance coverage), former long-serving Ohio over, the composition of the Ohio                  Some of these provisions are similar                   fered by recreational trail users.14
      House Speaker Vern Riffe began hearings  Supreme Court has changed significantly         or identical to the provisions that the Ohio                   Evidence of Non-use of a Seatbelt.
      on comprehensive tort and insurance      since the last tort reform bill was passed.    Supreme Court declared unconstitutional                    Finally, S.B. 80 allows evidence of non-
      reform legislation. He pushed the legisla-
                                               In an attempt to make the limits on non-       in 1997. Currently, however, only two                      use of a seatbelt to be introduced in tort
      tion through the General Assembly, but iteconomic damages more rationally based,        justices who struck down the prior tort                    actions for the purpose of reducing
      was vetoed by then Governor Dick         S.B. 80 now divides these damage awards        reform bill still sit on the Supreme Court                 noneconomic damage awards.15
      Celeste. Not dissuaded, Riffe had the leg-
                                               into two categories – catastrophic and         (Justices Alice Robie Resnick and Paul
      islation reintroduced in 1987 as H.B. 1, non-catastrophic damages.4                     Pfeiffer). The other two justices, who                               Conclusion
      rammed it through again, and dared the       If a plaintiff has suffered catastrophic   were in the 1997 majority (Justices                What will be the result of the Ohio
      Governor to veto it, while the biennial  damages, S.B. 80 does not limit the            Andrew Douglas and Francis Sweeney),          General Assembly’s latest attempt to tame
      appropriations act was pending in the    amount of noneconomic damages that the         have retired and have been replaced by        the tort beast? Because the changes to the
      House. Celeste signed the bill, which    plaintiff may receive. Instead, it creates a   justices who are considered pro-business      General Assembly’s most recent bill and
      drastically rewrote the tort law in Ohio.new post-judgment review mechanism             (Justices Maureen O’Connor and Judith         to the composition of the Ohio Supreme
      The Supreme Court, however, steadily     that permits a defendant to challenge the      Ann Lanzinger). As a result, legal and        Court, the General Assembly should at
      reversed the law over the next decade.   award as excessive. S.B. 80 also prohibits     legislative practioners believe that these    last win this long-fought battle.
          As a result of these reversals, in 1997
                                               the submission of certain types of evi-        provisions will likely be upheld as consti-
      the General Assembly passed a more       dence to the jury in the damages phase         tutional, as they have in other states.6
                                                                                                                                            1 The 125th General Assembly has also passed a host of
      comprehensive tort reform bill, which    (including the defendants’ alleged wrong-        Other Notable Provisions In S.B. 80         other tort reform bills, which have since become law. E.g.,
      included non-economic damage caps in     doing, wealth, or other evidence that is           S.B. 80 also contains a number of
                                                                                                                                            Sub. H.B. 342 (eff. Sept. 1, 2004) (establishing require-
                                                                                                                                            ments for certain silica claims); Am. Sub. H.B. 292 (eff.
      all tort cases. Again the Ohio Supreme   otherwise designed to punish the defen-        other significant reforms to the Ohio tort     Sept. 2, 2004) (establishing requirements for asbestos-
      Court (this time in a 4-3 decision)      dant’s conduct).                               system. The most important changes
                                                                                                                                            related lawsuits); H.B. 316 (signed Dec. 30, 2004) (provid-
                                                                                                                                            ing cable and television operators immunity forcertain
      declared the law unconstitutional.3 The      On the other hand, if the case is ordi-    include:                                      torts); H.B. 298 (signed Jan. 6, 2005) (amending the stan-
      Court sharply criticized the General     nary (i.e., if the plaintiff has only suffered     Statutes of Repose. S.B. 80 establishes
                                                                                                                                            dards for intentional torts in workers compensation
                                                                                                                                            claims). The 124th General Assembly also successfully
                                               noncatastrophic damages), S.B. 80 limits       a 10-year statute of repose for both prod-    enacted S.B. 281 (signed Jan. 10, 2003), dealing with
                                               noneconomic damages to the greater of                                                        medical malpractice reform.
    Richard D. Schuster is a Partner in the                                                   uct liability claims against manufacturers    2 Morris v. Savoy (1991), 61 Ohio St.3d 684, 690–91.
                                               $250,000, or three times economic loss up      or suppliers of products (period normally     3 State ex rel. Ohio Academy of Trial Lawyers v. Sheward
    Columbus, Ohio office of Vorys, Sater, Sey-                                                                                              (1999), 86 Ohio St.3d 451. The 124th4 General Assembly,
    mour and Pease LLP, one of the nation’s    to $350,000 with a maximum of $500,000         begins to run once the product is placed      however, passed legislation reviving tort law to the pre-
    leading asbestos defense firms. As chair-   per occurrence.                                into the stream of commerce) and con-         Sheward state. See S.B. 108 (eff. July 6, 2001).
                                                                                                                                            4 O.R.C. 2315.18.
    man of the firm’s Toxic Tort Litigation         S.B. 80 also places restrictions on the    struction-related claims (period runs from    5 O.R.C. 2315.21.

    practice group and as an expert in         amount of punitive damages that a plain-       the date of substantial completion of the     6 “According to the National Association of Mutual Insur-

    asbestos litigation, Mr. Schuster recently tiff can be awarded and prohibits multiple     project).7                                    ance Companies, 19 states have punitive damage caps
                                                                                                                                            and 23 have non-economic damage caps.” Editorial, Enact
    helped Ohio law-makers draft landmark      punitive damage awards.5 Under the new             Borrowing Statute. S.B. 80 also cre-      Legal Reforms, then Move on, CINCINNATI ENQUIRER, at C8
    asbestos and silica reform legislation and law, if a plaintiff requests punitive dam-     ates a “borrowing statute” for purposes of    (Dec. 8, 2004).
                                                                                                                                            7 O.R.C. 2305.10 and O.R.C. 2305.131.
    portions of S.B. 80. Thomas R. Winters is  ages, the defendant may then request a         a statute of limitations and bars a plaintiff 8 O.R.C. 2305.03.

    also a Partner in Vorys’s Columbus office.  bifurcated trial with a consideration of       from bringing a claim in Ohio if the plain-   9 O.R.C. 2307.75 and O.R.C.2307.71.
                                                                                                                                            10 O.R.C. 2305.36.

                       Please callatthe authors at (614) 464-6400if or via email attime-barred in his/her own 11 O.R.C. 2307.97.
    He represents businesses and trade associ-
    ations on legislative matters          the
                                               compensatory damages first. Only the
                                               jury awards compensatory damages
                                                                                              tiff’s claim is
                                                                                              state.8                                       12 O.R.C. trwinters@ vssp.com.
                                                                                                               rdschuster@vssp.com or 2315.20.
                                                                                                                                            13 O.R.C. 901.52.
    national, state, local and administrative  would the trial then move to a considera-          Amendment to Statutory Design             14 O.R.C. 1519.07 and O.R.C. 1533.18.

    agency levels.                             tion of punitive damages.                      Defect Torts and Abrogation of Common         15 O.R.C. 4513.263.

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