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.
email@example.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.