Our Attorneys

Meet the experienced and professional personal injury attorney team of Brown & Szaller

Kenneth J. Knabe
James F. Szaller
Kenneth J. Knabe
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Kenneth J. Knabe+

Attorney Kenneth J. Knabe is the lead Attorney representing those seriously injured or killed by inattentive, distracted or impaired drivers, as well as those seriously injured or killed by other types of careless acts or conditions.

Mr. Knabe has 35 years experience as a trial attorney representing the injured. He is the Past President of the Cleveland Academy of Trial Attorneys. He has lectured Ohio Attorneys on injury law at numerous legal seminars. He has the highest rating from his peers: “A Pre-eminent”  by Martindale Hubbell Law Directory, the world’s leading guide to the legal profession. He is also named as Ohio Super Lawyer”.

From the moment you contact Brown & Szaller, your case will be handled by Kenneth J. Knabe. His personalized approach removes the uncertainty confronting you and helps maximize your recovery in a caring and professional manner. Ken will never stop until his clients receive full and complete justice!

Experience+

Mr. Knabe has over 30 years experience as a trial attorney. He has tried over 50 jury trials and has several appearances in the Court of Appeals and the Ohio Supreme Court. He is mentioned in many published Ohio judicial opinions.

He is past President of the Cleveland Academy of Trial Attorneys (CATA – 2002-2003). CATA is an organization of trial lawyers that seeks justice for the injured. Ken is also a member of the American Association of Justice, the Ohio Association of Justice, the Cleveland Bar Association, the Cuyahoga County Bar Association, and the Florida Bar (1981).

He has written several legal articles for the Cleveland Bar Magazine, Ohio Trial Magazine, and CATA Magazine. He has lectured on Ohio tort law across Ohio and has appeared Crain’s Business News, Cleveland Plain Dealer, Medina Gazette and Canton Repository, as well as numerous radio appearances.

He has handled several high profile serious injury and death claims, including the Medina County steam engine explosion; the East High School gym collapse; the Gates Mills Tower murder/security case, and the storm sewer drownings in Perry Township.

Biography+

Mr. Knabe has over 30 years experience as a trial attorney. He has tried over 50 jury trials and has several appearances in the Court of Appeals and the Ohio Supreme Court. He is mentioned in many published Ohio judicial opinions.

He is past President of the Cleveland Academy of Trial Attorneys (CATA – 2002-2003). CATA is an organization of trial lawyers that seeks justice for the injured. Ken is also a member of the American Association of Justice, the Ohio Association of Justice, the Cleveland Bar Association, the Cuyahoga County Bar Association, and the Florida Bar (1981).

He has written several legal articles for the Cleveland Bar Magazine, Ohio Trial Magazine, and CATA Magazine. He has lectured on Ohio tort law across Ohio and has appeared Crain’s Business News, Cleveland Plain Dealer, Medina Gazette and Canton Repository, as well as numerous radio appearances.

He has handled several high profile serious injury and death claims, including the Medina County steam engine explosion; the East High School gym collapse; the Gates Mills Tower murder/security case, and the storm sewer drownings in Perry Township.

He graduated in the top 7% of his class at Cleveland Marshall College of Law, Cum Laude, and received the Charles Auerbach Evidence Award as an outstanding student in evidence. He is a Summa Cum Laude graduate of the University of Cincinnati.

Ken grew up in Cleveland and played defensive end at St. Ignatius, a pronounced high school elite football program. Ken never missed a tackle because he would “never let go” once he got his hand on a running back. He completely bent his finger once, but tackled the Holy Name quarterback for a loss. He will never stop or let go until his clients receive full justice.

Kenneth J Knabe continues to lecture and write about Ohio tort law. He wrote this article and made lecture presentations on Ohio Intentional tort Law. He lectured in Cleveland on January 14, 2011 and in Columbus on his birthday, January 21,2011.

OHIO TRIAL MAGAZINE+

Am. Sub. S. B. 120 by Kenneth J. Knabe

Am. Sub. S. B. 120 (S. B. 120) is a new tort regulation which erases over a century of Ohio jurisprudence. Under S. B. 120, joint and several liability is reduced or eliminated.


OHIO TRIAL MAGAZINE ARTICLE

Am. Sub. S. B. No. 120

By Kenneth J. Knabe

I. SUMMARY

Am. Sub. S. B. No. 120 (S. B. 120) is a new tort regulation which erases over a century of Ohio jurisprudence. A copy of S. B. 120 is attached to this Article. Under S. B. 120, joint and several liability is reduced or eliminated; uncollectible percentages of fault are lost to liable non-parties; the comparative negligence statute is repealed and replaced with a Acontributory fault@ standard; and Acontributory negligence@ is now admissible in a strict product liability claim.

S. B. 120 eliminates the long established doctrine of full recovery for the plaintiff and actually creates unnecessary litigation; plaintiff=s attorneys must now sue all possible liable parties or lose that percentage of negligence. S. B. 120, per OATL member, Richard C. Alkire, should be titled – The Defense Lawyer=s Entitlement Act. S. B. 120’s draconian provisions place Ohio law somewhere before 1880 or the pre-industrial revolution. S. B. 120 is open to constitutional attack (See VI, infra).

II. EFFECTIVE DATE

S. B. 120 applies only to torts that occur on or after April 9, 2003; it is not retroactive. (See S. B. 120 Section 3.)

III. JOINT AND SEVERAL LIABILITY

(A) Prior Law

Under the doctrine of joint and several liability, each joint tortfeasor can be held responsible for plaintiff=s entire damages. This widely accepted doctrine furthers the tort system goals in two ways:

  1. The tortfeasor must accept full responsibility and cannot escape liability by showing someone else is also liable.
  2. The wrongfully injured plaintiff can obtain full satisfaction of damages without limitation or restriction upon the number of defendants contributing. Diamond v. Davis Bakery, Inc. (1966), 8 Ohio St.2d 38, 44.
    Ohio=s statutory right to contribution or indemnity against a joint tortfeasor mitigated this responsibility. (Newly repealed ”2307.31-32; Fidelholtz v. Peller (1998), 81 Ohio St.3d 197, at 202.)

The Ohio Supreme Court, as early as 1880, recognized joint and several liability as Ohio=s common law:

  • The general rule undoubtedly is, that where damage is caused by the joint or concurrent wrongful acts of two or more persons, they may be prosecuted therefore jointly or severally.@ Transfer Co. v. Kelly (1880), 38 Ohio St.86, 90.

This doctrine is as sound today as it was in 1880.*

(B) S. B. 120’s New Joint and Several Restrictions (”2307.22-23)

 

These new joint and several provisions apply to a Atort action@ (‘2307.22(A)(1)). A tort action is a civil action for personal injury, wrongful death, and property damage, including product liability claims(‘2307.011(K)).

Plaintiff=s damages are now classified as Aeconomic loss@ and Anoneconomic loss@. Noneconomic loss is pain and suffering (‘2307.011(F)). Economic loss is medical bills, expenses, wages, property damage, or other actual expenditures (‘2307.011(C)).

S. B. 120’s joint and several liability changes are as follows:

  1. Joint and several liability never exists for noneconomic loss (‘2307.22(C)).
  2. Joint and several liability exists only for economic loss when a defendant is more than 50% negligent, except in an Aintentional tort@ [defined in '2307.011(D) to exclude employer intentional torts] (‘2307.22(A)(1) & (3)).
    * S. B. 350 and joint and several liability, Dennis Lansdowne, Bernard Friedman Seminar, Cleveland Academy of Trial Attorneys, February 27, 1997.
  3. 3. Thus, no joint and several liability exists for any defendant whose negligence is 50% or less; that defendant is only liable for its proportionate share of the economic and noneconomic loss (‘2307.22(B)). However, see the exception in preceding no. 2.

Finally, a jury can now attribute a portion of Atortious conduct@ to liable non-parties. Liable non-parties are delineated in ‘2307.011(H) as a person from whom the plaintiff does not seek recovery in this action and includes those who have settled, been dismissed, or who were not a party to the tort action whether or not that person could have been a party, if the name of the person has been disclosed prior to trial (‘2307.23(A)(2)). Under previous law, a jury could only apportion a percentage of negligence among the parties to a lawsuit. See Eberly v. A.P. Controls, Inc. (1991), 61 Ohio St. 3d 27 and newly repealed ‘2315.19.

(C) Examples

Negligence claim: plaintiff is negligent free with no liable non-parties.

Defendant A: 55% Tortious Conduct
Defendant B: 45% Tortious Conduct
Total: 100%
Award: $1,000,000 ($500,000 economic loss/$500,000 noneconomic loss)

Defendant A is jointly and severally liable for 100% of the economic loss since AA@ is over 50% negligent ($500,000 economic). AA@ is only liable for its individual share of the noneconomic loss since joint liability never exists for noneconomic loss ($500,000 X .55 = $275,000 noneconomic). Plaintiff=s maximum recovery from AA@ is $775,000. Prior to S. B. 120, Plaintiff could recover the full $1,000,000 from AA@ under joint and several liability.

Defendant B is only individually liable since AB@=s negligence is 50% or less. ($500,000 X .45 = 225,000 economic) ($500,000 X .45 = 225,000 noneconomic). The maximum recovery from AB@ is $450,000. Prior to S. B. 120, Plaintiff could recover the full $1,000,000 from AB@ under joint and several liability.

Other harsh results will occur. Assume Defendant A was a liable non-party or insolvent. The maximum Plaintiff could recover is $450,000 from Defendant B. This new law erodes over a century of Ohio jurisprudence by punishing the negligent free Plaintiff and awarding the tortfeasor, Defendant B, who is at fault and caused damage to the under-compensated Plaintiff.

IV. COMPARATIVE NEGLIGENCE

(A) Prior Law

S. B. 120 repealed Ohio=s modified comparative negligence statute – ‘2315.19 (S. B. 120, Section 2.). Under repealed ‘2315.19, if plaintiff was 50% or less negligent, plaintiff could recover full damages less plaintiff=s percentage of negligence. If plaintiff was 51% or more negligent, plaintiff lost. A seldom used exception in repealed ‘2315.19 eliminated joint and several liability for noneconomic damages only when plaintiff was comparatively negligent.

(B) S. B. 120’s New Contributory Fault Defense (”2315.32-36)

S. B. 120:

  1. Repeals Ohio=s comparative negligence statute and substitutes the affirmative defense of plaintiff=s Acontributory fault@ in a negligence or tort claim involving injury or death, but does not apply to product liability claims (‘2315.32(A)) (see Section V infra);
  2. Contributory fault includes plaintiff=s contributory negligence, other contributory tortious conduct, comparative negligence, or express or implied assumption of the risk. (‘2307.011(B)). Express assumption of the risk occurs when the plaintiff expressly agrees or contracts with the defendant not to sue for any future injuries which might be caused by defendant=s negligence. Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 114, 451 N.E.2d 780. Implied assumption of the risk occurs when plaintiff has knowledge of a condition which is obviously dangerous and voluntarily exposes himself/herself to that risk of injury. Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 114, 451 N.E.2d 780, and Briere v. Lathrop Co. (1970), 22 Ohio St.2d 166, 174-75, 258 N.E.2d 597. Repealed ‘2315.19 also merged contributory negligence and implied assumption of risk defenses per Anderson v. Ceccardi, supra. However, express assumption of the risk was a complete bar to recovery, per common law. Note – Is express assumption of the risk now merged into comparative negligence by its inclusion in this definition of a contributory fault?
  3. Retains Ohio=s modified comparative negligence standard, but reduces plaintiff=s recovery by a percentage of liability attributable to liable non-parties; (‘2315.33) Consequently, a plaintiff still recovers if the plaintiff=s contributory fault is 50% or less than the combined tortious conduct of all other parties and liable non-parties. However, apportioning fault to liable non-parties is another radical departure from existing Ohio law. See Eberly v. A-P Controls, Inc., supra. (See Section III(B)(4), supra).
  4. Incorporates the preceding changes in joint and several liability. (See Section III(B), supra) (”2315.34(D), 2315.35; 2315.36; 2307.011(K)).
  5. Eliminates the defense of plaintiff=s contributory fault in an intentional tort claim (‘2315.32(B)]. However, the intentional tort definition in ‘2307.011(D) excludes employer intentional torts. Defendant employers may attempt to assert contributory fault defense in employer intentional tort claims. However, any statute that abrogates the common law must be strictly construed and the language must clearly show that intent. Carrel v. Allied Products Corp. (1997), 78 Ohio St.3d 284. Plaintiff=s contributory fault could only apply to employer intentional tort claims as an exception to the exception. Absent an express provision that plaintiff=s contributory fault is a defense to an employer intentional tort claim, the common law applies, precluding this defense.

(C) Examples

Example 1:

Negligence claim:

Defendant A: 50% Tortious Conduct
Defendant B: 25% Tortious Conduct
Plaintiff: 25% Contributory Fault
Total: 100%
Award: $1,000,000 ($500,000 economic loss/$500,000 noneconomic loss)

Plaintiff=s $1,000,000 total award is reduced by Plaintiff=s 25% contributory fault to $750,000.00. Defendant A is only individually liable for its proportionate share of Plaintiff=s award ($1,000,000 X .50 = $500,000). Defendant B is also only individually liable for its proportionate share of plaintiff=s award ($1,000,000 X .25 = $250,000). No joint and several liability exists since neither defendant is greater than 50% negligent.

Assume Defendant A is a liable non-party or uncollectible. $500,000 of Plaintiff=s $750,000 award is lost. The maximum plaintiff can collect is $250,000 from Defendant B.

Example 2:

Negligence claim:

Defendant A: 10% Tortious Conduct
Defendant B: 10% Tortious Conduct
Other Liable Non-Parties: 29% Tortious Conduct
Plaintiff: 51% Contributory Fault
Total: 100%
Award: $1,000,000 ($500,000 economic loss/$500,000 noneconomic loss)

Plaintiff loses: 51% or more negligent.

V. PRODUCT LIABILITY

(A) Prior Law

Under Ohio common law applying Section 402(A) of the Restatement of the Law 2d, Torts (1965), comparative negligence was not a defense to a strict product liability claim. Bowling v. Heil Co. (1987), 31 Ohio St.3d 277. In Bowling v. Heil, supra, the Court (Judge Moyer concurring) conducted an exhaustive analysis of strict products liability as it relates to comparative negligence. The Court held that comparative negligence is Afundamentally inapplicable@ to strict product liability claims. Bowing v. Heil, 31 Ohio St.3d at 286. Borrowing from a holding from a Colorado Court, the Court stated AProducts liability under ‘402(A) does not rest upon negligence principles, but rather is premised on the concept of enterprise liability for casting a defective product into the stream of commerce***Thus, the focus is upon the nature of the product, and the consumer’s reasonable expectations with regard to that product, rather than on the conduct either of the manufacturer or of the person injured because of the product. Bowling v. Heil, Ohio St.3d at 285.

(B) S. B. 120’s New Product Liability Defenses (”2315.41-46)

The new product liability defenses are as follows:

  1. AContributory negligence@ is now a defense to a statutory product liability claim under ‘2367.71 et seq. (‘2315.43). Thus, strict product liability is effectively eliminated since no obvious advantage exists over negligence theories; manufacturers now have free reign to focus on the conduct of the worker – not the safety of the machine or product. The costs are no longer borne by the manufacturer and ultimately, by the users, but rather by the consumer-victim.
  2. A contributory negligent plaintiff can still recover if plaintiff’s percentage of negligence is 50% or less than the combined tortious conduct proximately caused by all defendants and liable non-parties (‘2715.43; 2307.23). However, attributing an uncollectible percentage of fault to liable non-parties radically changes Ohio product liability law. See Eberly v. AP Controls, supra. (Section III(B)(4), supra).
  3. Express or implied secondary assumption of the risk may be asserted as a complete bar to a product liability claim (‘2315.42(A)). This is in accord with prior Ohio law, except in a negligent design claim or when the plaintiff had to encounter the risk in the normal performance of plaintiff’s job duties. In negligent design claims, implied/secondary assumption of the risk merged with comparative negligence. See Carrel v. Allied Products Corp., supra, and Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 114, 451 N.E.2d 780. In Creamons v. Willmar (1991), 57 Ohio St.3d 145, the Ohio Supreme Court held that implied/secondary assumption of the risk does not apply when the plaintiff must encounter that risk in the normal performance of plaintiff’s required job duties. Creamons stated that Ohio should move into the >Twentieth Century=@ Creamons, supra, 57 Ohio St.3d at 149. Section 2315.42 should be strictly construed not to change this existing common law. Otherwise, this legislation returns Ohio to the Nineteenth Century – that would be the 1800’s!
  4. Incorporates the joint and several liability changes (See Section III).

(C) Examples:

Example 1:

Product Liability Claim:

Defendant A: 15% Tortious Conduct

Defendant B: 25% Tortious Conduct
(previously entered into a settlement agreement with plaintiff)

Product Distributor Defendant: 20% Tortious Conduct
(dismissed without prejudice)

Employer: 20% Tortious Conduct
(dismissed without prejudice since no intentional tort claim could be proven)

Product Manufacturer: 20% Tortious Conduct
(not sued since could not be served under the Hague Convention)

Total: 100%
Award: $1,000,000 ($500,000 economic loss/$500,000 noneconomic loss)

Under this scenario, plaintiff would only be able to receive $150,000 from Defendant A. This example illustrates issues associated with the meaning of tortious conduct and proximately caused injury. Arguments will have to be made that it makes no sense to include Defendants within an interrogatory against whom a judgment could not be obtained, since the court would be without jurisdiction or because a valid claim does not exist against them. Thus, their conduct could not be considered tortious, and they could not be considered to have proximately caused injury.

VI. CONTRIBUTION/INDEMNITY

S. B. 120’s newly enacted ”2307.25-29 provides the following:

  1. Existing Ohio law on contribution and indemnity contained in ‘2307.31-33 is repealed . (S. B. 120, Section 2.).
  2. A joint tortfeasor who has paid more than that tortfeasor’s proportionate share of the common liability has a right of contribution only for the excess of that tortfeasor’s proportionate share (‘2307.25(A)).
  3. No right of contribution exists for joint tortfeasors who commit an Aintentional tort@ (‘2307.25(A)). Note, however, that the definition of Aintentional tort@ excludes employer intentional tort claims (‘2307.011(D)).
  4. A tortfeasor who enters into a settlement with plaintiff is not entitled to contribution from another joint tortfeasor whose liability is not extinguished by the settlement (‘2307.25(B)).
  5. Recovery of a judgment against one tortfeasor does not discharge other tortfeasors from loss unless the full judgment is satisfied (‘2307.25(A)).
  6. A defendant who enters into a good faith settlement with the plaintiff, has no liability for contribution to another joint tortfeasor (‘2307.28(B)).
  7. A good faith release or covenant to one joint tortfeasor does not discharge other joint tortfeasors unless the terms otherwise provide (‘2307.28(A) & ‘2307.28(B)). Accordingly, release only that party and not Aall liable parties@; also, specifically preserve your claims against Aall other parties@.
  8. A joint tortfeasor receives full credit for all sums already recovered by the plaintiff in settlement or covenant, except when it would result in plaintiff’s receiving less than the total amount of compensatory damages (‘2307.28). This changes the holding under Fidelholtz v. Peller, 81 Ohio St.3d 197 (1998) and former ‘2307.32(F), which provided that a set-off occurred only when the settling tortfeasor admitted Aliability in tort@.

VII. S. B. 120 – CONSTITUTIONAL IMPLICATIONS

(A) Article 1, ’16 – Open Courts

Ohio Constitution Art. 1, ’16 states AAll Courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law and shall have justice administered without denial or delay@.

This powerful Open Court’s provision is also called: ARight to a Remedy@, ADue Process@, or ADue Course of Law@.

The doctrine of joint and several liability is rooted in this provision. The Ohio Supreme Court held that Aa person wrongfully injured in his person is entitled, in the administration of justice, to full satisfaction without limitation or restriction upon the number of defendants contributing to cause such injury@. Diamond v. Davis Bakery, Inc. (1966), 8 Ohio St.2d, 38, 44. The Diamond Court held that a covenant not to sue a joint tortfeasor failed to release another joint tortfeasor.1

Also, a fundamental tort principal is to make the plaintiff whole for his/her injuries. Fantozzi v. Sandusky Cement Products Co. (1992), 64 Ohio St.3d 601.

S. B. 120’s restricts or eliminates joint and several liability; this denies plaintiff full recovery or remedy. This same result occurs by apportioning fault to liable non-parties. (See the examples in Section III(C), supra).

A negligent free plaintiff is the best plaintiff to mount a constitutional attack on S. B. 120’s joint and several and liable non-parties changes. See for example, Transfer Co. v. Kelly, 36 Ohio St. 86 (1880).

These provisions may also violate the jury’s inviolate authority to determine the amount of damages. See Art I, ‘5; Galayda v. Lake Hosp. Sys., Inc. (1994), 71 Ohio St.3d.

(B) Art. I, ’19(A) – Wrongful Death

Ohio Constitution Art. 1 ’19(A) provides the amount of damages recoverable by civil action in the courts for death caused by the wrongful act, neglect, or default of another shall not be limited by law.

S. B. 120 applies to wrongful death actions (‘2307.011(E) and 2307.011(K)) and unconstitutionally limits the plaintiff’s damages by eliminating joint and several liability and recovery for percentages attributed to liable non-parties. (See example in Section III(C), supra).

(C) Art. IV, ‘5(B) – Separation of Powers Art. II, ’32

Art. IV, ‘5(B) provides: AThe Supreme Court shall prescribe rules governing practice and procedure in all courts of the state which rules shall not abridge, enlarge, or modify any substantive right@, and A(a)ll laws in conflict with such rules shall be of no further force and effect after such rules have taken effect.@ Also, Art. II, ’32 prohibits the General Assembly from exercising judicial power.

A defendant can raise the liability of non-parties as an affirmative defense any time before trial (‘2307.23(C)). This unconstitutionality conflicts with controlling Ohio Civil Rule 12 that requires all defenses must be raised in a responsive pleading or by applicable Motion. (See also, Civil Rule 8)

In Rocky v. 84 Lumber Co. (1993), 66 Ohio St.3d, 221, the Court held: AThe Ohio Rules of Civil Procedure, which were promulgated by the Supreme Court pursuant to Section 5(B) Article IV of the Ohio Constitution, must control over subsequently enacted inconsistent statutes purporting to govern procedural matters.@
Legislative infringing on the Court’s rule-making power is a violation of the separation of powers and was one of the primary reasons for the Court determined that S. B. 350 was unconstitutional in State ex rel. Ohio Academy of Trial Lawyers, et al. v. Sheward (1999), 86 Ohio St.3d 451 at page 491. Note that the application of S. B. 120’s restrictions on recovery are via jury interrogatories. This may also infringe on the Court’s powers.

If you can find any other infringement upon the Rules of Civil Procedure or Evidence in S. B. 120, the Court will readily find the statute unconstitutional as a violation of the Separation of Powers, per Sheward, supra.

A similar liable non-party rule in Michigan was struck down under this theory. Staff v. Johnson, 242 Mich. App. 321 (2000)3.

Note that similar provisions on joint and several liability were contained in S. B. 350, which was struck down in Sheward, supra. A violation of separation of power also occurs when the legislators pass laws which the Court has already decreed unconstitutional. However, Sheward never directly addressed this portion of S. B. 350.

(D) Art. II, ’15(D) – One Subject Rule

Art. II, ’15(D) provides ANo bill shall contain more than one subject….@

 

In Sheward, the Court found that S. B. 350 violated the one subject rule because it contained numerous diverse provisions and the commonality of purpose was attenuated. Under Sheward, the more blatantly unrelated provisions (Alog rolling@), the more likely the law is unconstitutional.

S. B. 120 addresses numerous topics previously addressed. It also contains specials sections on:

1. roller rink liability (‘4171.10); 2. a potential liability for a minor’s temporary permit (‘4507.07); and 3.liability for a taxpayer aggrieved by the Department of Taxation in the Court of Claims (‘5703.54).

S. B. 120 amends ”1775.14; 2315.08; 4171.10; 4507.07; and 5703.54; enacts ”2307.011, 2307.22, 2307.23, 2307.24, 2307.25, 2307.26, 2307.27, 2307.28, 2307.29, 2315.32, 2315.33, 2315.34, 2315.35, 2315.36, 2315.41, 2315.42, 2315.43, 2315.44, 2315.45, and 2315.46; and repeals ”2307.31, 2307.32, 2307.33, 2315.19, and 2315.20. Thus S. B. 120 amends, enacts, or repeals thirty sections of the Ohio Revised Code.

The Constitutional one subject limitation is liberally construed in favor of the General Assembly. However, it appears, at the very least, that the General Assembly obviously Alog rolled@ the provisions on roller rink liability, temporary permits, and taxpayer liability.

(E) Due Process/Equal Protection

Under due process and/or equal protection, a rational basis test exists if a fundamental right is not involved. Under the rational basis test, the challenger of the statute must prove that the statute is arbitrary and unreasonable. See Morris v. Savoy (1991), 61 Ohio St.3d 684; Mominee v. Scherbarth (1986), 28 Ohio St.3d 270; and Schwan v. Riverside Methodist Hospital (1983), 6 Ohio St.3d 300. Morris v. Savoy, supra, holds that AEqual protection of the laws require the existence of reasonable grounds for making a distinction between those within and those outside a designated class.@ Morris, 61 Ohio St.3d at 699, citing State v. Buckley (1968), 16 Ohio St.2d 128. The challenger must demonstrate there was no rational basis for a creation of the class or that those within the class were not being treated equally in furtherance of a legitimate governmental interest.4

S. B. 120 may violate equal protection since the joint and several liability restrictions only apply to tort actions, and not to partnerships (‘1775.14). Also, what rational basis exists for determining that joint and several liability only applies to economic damages v. noneconomic damages or to the over 50% negligent defendant v. the 49% or 50% negligent joint defendant.

If a fundamental right is involved, a strict scrutiny test requires a compelling government justification. Sorrell v. Thevenir (1994), 69 Ohio St.3d 415. If S. B. 120 violates Ohio’s constitutionally protected Open Court/Right to Remedy provision, argue a strict scrutiny standard.

 

  • Challenge the constitutionality of S. B. 120 in your Complaint. Remember to serve a copy of your Complaint on the Attorney General. Remember.
  • Sue everyone who is liable in sight – otherwise, a jury may award a percentage of negligence to a liable non-parties leaving your plaintiff with no recovery.
  • Sue several John Does within the statute of limitations. Remember you have a year to name and personally serve your John Does.
  • File early and discover the identity and specific negligent acts of all liable non-parties within the statute of limitations; you can then add them to the lawsuit.
  • Remember, the defendant must actually identify any liable non-parties by name before the trial.
  • Argue that liable non-parties cannot engage in tortious conduct that proximately caused injury, especially if the Court lacks jurisdiction or a valid claim does not exist against them.
  • If the suggestion above fails, request the Court to assess at least a directed verdict standard for all liable non-parties. Remember, the defendant has the burden of proving any contributory fault upon the plaintiff and the defendant should also have the burden of proving fault upon liable non-parties.
  • Maximize recovery – Break down and request recovery on each and every element of economic loss (‘2307.011(C)) and noneconomic loss (‘2307.011(F)). Remember the noneconomic loss elements in Fantozzi, supra – loss of enjoyment of life and basic activities are missing from the statutory definition of noneconomic damages in ‘2307.011(F) – include them!
  • When partially settling with a joint tortfeasor, release only that tortfeasor and preserve all claims against all other liable parties.

Kenneth J. Knabe

Alan J. Ross

James F. Szaller

OHIO ASSOCIATION OF JUSTICE ANNUAL SEMINAR+

Tort Reform by Kenneth J. Knabe

The General Assembly ignored decades of Ohio’s Jurisprudence by passing a litany of “tort reform bills,” advanced by national business organizations. These laws are designed to shelter corporations.


ANGST AND MARINO

Joint and Several Liability: Does it Exist in Tort Cases?

I. SUMMARY

Answer: joint and several liability exists as a mere shell of its former stature with the passage of Am. Sub. S. B. No. 120 (SB 120). Unlike other Tort Regulations passed since 2003, SB 120 applies to all “tort actions”, including wrongful death and product liability. (‘2307.011(K)). SB 120 erases over a century of Ohio Jurisprudence by reducing or eliminating joint and several liability and by allocating uncollectible percentages of fault to liable non-parties.

II. JOINT AND SEVERAL LIABILITY LAW

(A) Prior Law

The Ohio Supreme Court, as early as 1880, recognized joint and several liability as Ohio’s common law:

  • A The general rule undoubtedly is, that where damage is caused by the joint or concurrent wrongful acts of two or more persons, they may be prosecuted therefore jointly or severally.@ Transfer Co. v. Kelly (1880), 38 Ohio St.86, 90.

Under the doctrine of joint and several liability, Plaintiff can collect the entire damage award from any one or all of the joint tortfeasors, but not more. Price v. McCoy Sales & Serv., Inc.(1965), 2 Ohio State 2d 131, 139-140, citing Larson v. Cleveland Ry. Co. (1943), 142 Ohio State 20. The wrongfully injured Plaintiff can achieve full satisfaction of damages without limitation or restriction upon the number of Defendants contributing. Diamond v. Davis Bakery, Inc. (1966), 8 Ohio St.2d 38, 44. The wrongdoer is not permitted to escape responsibility by showing that someone else is also liable.

Ohio’s statutory right to contribution or indemnity amongst joint tortfeasors mitigated any perceived injustice. (See repealed ”2307.31-32; Fidelholtz v. Peller (1998), 81 Ohio St.3d 197, at 202.)

Joint and several liability remained Ohio’s law from 1880 until the passage of seldom used O.R.C. §2315.19 (repealed by S.B. 120) which excluded noneconomic damages from joint and several liability, only if the Plaintiff was comparatively negligent.

(B) Present Law- SB 120’s Joint and Several Restrictions (”2307.22-23)

SB 120 applies to all tort claims occurring on or after April 9, 2003.

Plaintiff’s damages are classified as economic and noneconomic loss. Economic loss is medical bills, expenses, wages, property damage, or other actual expenditures (‘2307.011(C)). Noneconomic loss is pain and suffering (‘2307.011(F)).

Joint and several liability never exists for noneconomic loss, even in an intentional tort. S.B. 120 protects robbers, murderers, rapists, or any other tortfeasor who commit criminal acts.

Joint and several liability exists only for economic loss when a Defendant is over 50% negligent, except in an Aintentional tort@ [defined in '2307.011(D) to exclude employer intentional torts] (‘§2307.22(A)(1) & (3)]. Conversely, no joint and several liability exists for any Defendant whose negligence is 50% or less, except for this intentional tort exception.

(C) Present Law – SB 120’s Liable non-parties

More angst is contained in SB 120! A jury can now attribute a portion of Atortious conduct@ to those delineated as a person from whom the Plaintiff does not seek recovery in this action and includes those who have settled, been dismissed, or who were not a party to the tort action whether or not that person could have been a party, if the name of the person has been disclosed prior to trial ['2307.011(H); '2307.23(A)(2)] Under previous law, a jury could only apportion a percentage of negligence among the parties to a lawsuit. See Eberly v. A.P. Controls, Inc. (1991), 61 Ohio St. 3d 27 and repealed ‘2315.19.

III. EXAMPLES

With these changes, Plaintiffs play Russian roulette by waiting to file and identify all liable parties.

(A) Negligence claim

T-bone car crash.
Defendant A is negligent driver.
Police issue no citations – Both parties claim green light.
Plaintiff taken from scene by ambulance.
Defendant A is driving B’s car.
Plaintiff treats for two years. Offer is too low.
Plaintiff files against Defendant A and B (negligent entrustment) just before SOL.
Preparing for A’s deposition, you find A was charged with DUI in a separate report.
At deposition, A admits:

  • Having several drinks with Defendant B at a bar identified by name.
  • B lent A his car so she could get cigarettes.
  • Bartender continued to serve A.

TRIAL

Defendant A: 50% Tortious Conduct
Defendant B: 25% Tortious Conduct
Liable non-party (Bar): 25% tortious conduct
Total: 100%
Award: $300,000 ($50,000 economic loss; $250,000 noneconomic loss)

Noneconomic loss Since joint and several liability never exists for noneconomic loss, plaintiff can only recover Defendant A’s individual share of noneconomic loss. $250,000 X .50 = $125,000. Defendant B and the identified liable non-party Bar are each attributed 25% of Plaintiff’s noneconomic loss. $250,000 X .25 = $62,500. Plaintiffs just lost $62,500 attributed to the Bar.

Economic Loss Defendant A is not jointly and severally liable for the economic loss since AA@ is not over 50% negligent. AA@ is only liable for her individual share of the economic loss. $50,000 X .50 = $25,000. Defendant B and the Bar are each attributed 25% of Plaintiff’s economic loss. $50,000 X .25 = $12,500. Plaintiff just lost $12,500 attributed to the Bar.

Maximum Recovery Plaintiff’s maximum recovery from A and B is $225,000. Assume B is uncollectible or has no insurance coverage for negligent entrustment or was not sued within SOL. Plaintiff’s maximum recovery is $150,000.

Prior to SB 120, Plaintiff could recover the full $300,000 from “A” or AB@ under joint and several liability.

SB 120 erodes over a century of Ohio jurisprudence by punishing the negligent free Plaintiff andawarding the tortfeasors, who are at fault and caused damage to the under-compensated Plaintiff.

(B) Intentional Tort

Assault
Billy Gates (Defendant A) and his unemployed college friend (Defendant B). Gates identifies Defendant B by name. B is insolvent.

TRIAL

Defendant A: 10% Intentional Tortious Conduct< br/> Defendant B: 90% Intentional Tortious Conduct
Total Award: 100%
Award: $300,000 ($500,000.00 economic/$250,000 noneconomic)

Noneconomic Loss Since joint and several never applies to noneconomic loss, even for an intentional tortfeasor, Defendant A is only liable for his individual share of the noneconomic portion. $250,000 X .10 = $25,000.

Economic Loss Since Defendant A is an intentional tortfeasor, he is jointly and severally liable for the entire amount of economic loss, $50,000.

Maximum Recovery The maximum recovery for the Plaintiff against Defendant A is $75,000. SB 120 awards the intentional tortfeasor A with a credit for $225,000; and punishes the negligent free Plaintiff the same amount.

Under SB 80, the maximum punitive damages are two times compensatory or $150,000 unless A acted purposely and knowingly and plead or was found guilty of this type of offense.

IV. COMPARATIVE NEGLIGENCE – CONTRIBUTORY FAULT

(A) Prior Law

SB 120 repealed §2315.19, Ohio’s modified comparative negligence statute (SB 120, Section 2.). Under repealed ‘2315.19, if Plaintiff was 50% or less negligent, Plaintiff could recover full damages less Plaintiff’s percentage of negligence. If Plaintiff was 51% or more negligent, Plaintiff lost.

(B) Present Law

SB 120 retains Ohio’s modified comparative negligence standard but calls it “contributory fault.” §2307.011(B). However, SB 120 reduces Plaintiff’s recovery by a percentage of liability attributable to liable non-parties; (‘2315.33). Consequently, a Plaintiff still recovers if the Plaintiff’s contributory fault is 50% or less than the combined tortious conduct of all other parties and liable non-parties.

V. CONTRIBUTION/INDEMNITY

(A) A good faith release or covenant to one joint tortfeasor does not discharge other joint tortfeasors unless the terms otherwise provide (‘2307.28(A) & ‘2307.28(B)). Accordingly, release only that party and not Aall liable parties@; also, specifically preserve your claims against Aall other parties@.

(B) A joint tortfeasor receives full credit for all sums already recovered by the Plaintiff in settlement or covenant, except when it would result in Plaintiff’s receiving less than the total amount of compensatory damages (‘2307.28). This changes the holding under Fidelholtz v. Peller, 81 Ohio St.3d 197 (1998) and former ‘2307.32(F), which provided that a set-off occurred only when the settling tortfeasor admitted Aliability in tort@.

VI. S. B. 120 – CONSTITUTIONAL IMPLICATIONS

(A) Article 1, ’16 – Open Courts

The doctrine of joint and several liability is rooted in this provision. The Ohio Supreme Court held that Aa person wrongfully injured in his person is entitled, in the administration of justice, to full satisfaction without limitation or restriction upon the number of Defendants contributing to cause such injury@. Diamond v. Davis Bakery, Inc. (1966), 8 Ohio St.2d, 38, 44. The Diamond Court held that a covenant not to sue a joint tortfeasor failed to release another joint tortfeasor. A fundamental tort principal is to make the Plaintiff whole for his/her injuries. Fantozzi v. Sandusky Cement Products Co. (1992), 64 Ohio St.3d 601.

SB 120 restricts or eliminates joint and several liability; this denies Plaintiff full recovery or remedy. This same result occurs by apportioning fault to liable non-parties.

A negligent free Plaintiff is the best Plaintiff to mount this constitutional attack. See for example, Transfer Co. v. Kelly, 36 Ohio St. 86 (1880).

(B) Art. I, ’19(A) – Wrongful Death

SB 120 applies to wrongful death actions (‘2307.011(E) and 2307.011(K)) and unconstitutionally limits the Plaintiff’s wrongful death damages by eliminating joint and several liability and recovery for percentages attributed to liable non-parties. A negligent free decedent is the best Plaintiff to mount a constitutional challenge to SB 120.

(C) Art. IV, ‘5(B) – Separation of Powers Art. II, ’32

A Defendant can raise the liable non-parties as an affirmative defense any time before trial (‘2307.23(C)). This unconstitutionality conflicts with controlling Ohio Civil Rule 12 that requires all defenses must be raised in a responsive pleading or by applicable Motion. (See also Civil Rule 8)

In Rocky v. 84 Lumber Co. (1993), 66 Ohio St.3d, 221, the Court held: AThe Ohio Rules of Civil Procedure, which were promulgated by the Supreme Court, pursuant to Section 5(B) Article IV of the Ohio Constitution, must control over subsequently enacted inconsistent statutes purporting to govern procedural matters.@

Legislative infringing on the Court’s rule-making power is a violation of the separation of powers and was one of the primary reasons the Court determined that SB 350 was unconstitutional in State ex rel. Ohio Academy of Trial Lawyers, et al. v. Sheward (1999), 86 Ohio St.3d 451 at page 491. Note that the application of SB 120’s restrictions on recovery are via jury interrogatories. This may also infringe on the Court’s powers.

A similar liable non-party rule in Michigan was struck down under this theory. Staff v. Johnson, 242 Mich. App. 321 (2000)3.

(D) Art. II, ’15(D) – One Subject Rule

SB 120 addresses numerous topics and contains several specials sections on:

1. roller rink liability (‘4171.10); 2. a potential liability for a minor’s temporary permit (‘4507.07); 3. liability for a taxpayer aggrieved by the Department of Taxation in the Court of Claims (‘5703.54). and: 4. amends ”1775.14; 2315.08; 4171.10; 4507.07; and 5703.54; enacts ”2307.011, 2307.22, 2307.23, 2307.24, 2307.25, 2307.26, 2307.27, 2307.28, 2307.29, 2315.32, 2315.33, 2315.34, 2315.35, 2315.36, 2315.41, 2315.42, 2315.43, 2315.44, 2315.45, and 2315.46; and 4.repeals ”2307.31, 2307.32, 2307.33, 2315.19, and 2315.20. S. B. 120 amends, enacts, or repeals thirty sections of the Ohio Revised Code.

The Constitutional one subject limitation is liberally construed in favor of the General Assembly. However, it appears that the General Assembly Alog rolled@ the provisions on roller rink liability, temporary permits, and taxpayer liability.

(E) Due Process/Equal Protection

Under due process and/or equal protection, a rational basis test exists if a fundamental right is not involved. Under the rational basis test, the challenger of the statute must prove that the statute is arbitrary and unreasonable. See Morris v. Savoy (1991), 61 Ohio St.3d 684; Mominee v. Scherbarth (1986), 28 Ohio St.3d 270; and Schwan v. Riverside Methodist Hospital (1983), 6 Ohio St.3d 300. Morris v. Savoy, supra, holds that AEqual protection of the laws require the existence of reasonable grounds for making a distinction between those within and those outside a designated class.@ Morris, 61 Ohio St.3d at 699, citing State v. Buckley (1968), 16 Ohio St.2d 128. The challenger must demonstrate there was no rational basis for a creation of the class or that those within the class were not being treated equally in furtherance of a legitimate governmental interest.4

SB 120 may violate equal protection since the joint and several liability restrictions only apply to tort actions, and not to partnerships (‘1775.14). Also, what rational basis exists for determining that joint and several liability only applies to economic damages v. noneconomic damages or to the over 50% negligent Defendant v. the 49% or 50% negligent joint Defendant.

If a fundamental right is involved, a strict scrutiny test requires a compelling government justification. Sorrell v. Thevenir (1994), 69 Ohio St.3d 415. If SB 120 violates Ohio’s constitutionally protected Open Court/Right to Remedy provision, argue a strict scrutiny standard.

VIII. SUGGESTIONS

  • File early and discover the identity and specific negligent acts of all liable/non- parties within the statute of limitations; you can then add them to the lawsuit within the SOL.
  • Sue everyone who is liable in sight – otherwise, a jury may award a percentage of negligence to liable non-parties leaving your Plaintiff with no recovery.
  • Name several John Does in your complaint. Follow Ohio Civil Rules 15(C); 15(D), 3(A) and the savings statute 2305.19(A). Read Amerine v. Houghton Elevator Co., (1989) 42 Ohio St.3d 57. Read the briefs and look for the upcoming opinion in John A. La Neve, et al. v. Atlas Recycling, Inc.; China Shipping (North American Holding Co., Ltd., et al), Supreme Court Case No. 2007-1199; 2007-1372, 2007-1373 (Ohio Supreme Court – pending). Don’t rely on the Does to save you!
  • Remember, the defendant must actually identify any liable non-parties by name before the trial.
  • Argue that liable non-parties cannot engage in tortious conduct that proximately caused injury, especially if the Court lacks jurisdiction or a valid claim does not exist against them.
  • Request the Court to assess at least a directed verdict standard for all liable non-parties. Remember, the defendant has the burden of proving any contributory fault upon the plaintiff and the defendant should also have the burden of proving fault upon liable non-parties, especially since this is an affirmative defense.
  • Maximize recovery – Break down and request recovery on each and every element of economic loss (‘2307.011(C)) and noneconomic loss (‘2307.011(F)). Remember the noneconomic loss elements in Fantozzi, supra – loss of enjoyment of life and basic activities are missing from the statutory definition of noneconomic damages in ‘2307.011(F) – include them!
  • When partially settling with a joint tortfeasor, release only that tortfeasor and preserve all claims against all other liable parties.
  • Challenge the constitutionality of SB 120 in your Complaint. Send a copy of your Complaint to Attorney General. A negligent free decedent in a wrongful death claim poses the best constitutional challenge to SB 120.

OHIO TRIAL MAGAZINE+

Intentional Tortfeasor by Kenneth J. Knabe

Ohio’s General Assembly has attached the civil justice system by passing several new laws under the mantra of “Tort Reform”. Besides directly benefiting insurance companies, these laws which insulate and protect the worst type of tortfeasor – the intentional tortfeasor…


TORT REFORM—DETERMINE APPLICABLE LAW

By Kenneth J. Knabe

The General Assembly ignored decades of Ohio’s Jurisprudence by passing a litany of “tort reform bills”, advanced by national business organizations. These laws are designed to shelter corporations and insurance companies, to the detriment of Ohio taxpayers and voters who no longer have a right to have a jury determine what constitutes full, fair and complete compensation. The recent package of tort reform measures was enacted despite the Ohio Supreme Court’s striking down similar legislation in 1991 and 1999. Despite these rules and precedent, the Ohio Supreme Court has recently upheld the constitutionality of some of this third wave of tort reform.

This article focuses on which Bill applies to your case. For a more detailed analysis of each Bill, see past published Articles.

To assess these new laws, three issues exist:

  1. Actual Text
  2. Effective Date
  3. Retroactivity

1. Bills – Actual Text

Go to http://www.legislature.state.oh.us/. Click on “Search for Legislative Information”. You can then access the full text, Summary, and “Status of Report on Legislation” for the effective date.

2. Effective Date

Effective dates are all now clearly established.

  • SB 80 CAPS, PUNITIVE, PRODUCTS, Effective April 7, 2005
  • HB 498 EMPLOYER INTENTIONAL TORT, Effective April 7, 2005
  • HB 292 ASBESTOS, Effective September 2, 2004
  • HB 212 PREJUDGMENT INTEREST, Effective June 2, 2004
  • HB 161 SAVINGS STATUTE, Effective March 31, 2004
  • SB 281 MED MAL CAPS, Effective April 11, 2003
  • SB 106 POLITICAL SUBDIVISION, Effective April 9, 2003
  • SB 227 WORK COMP SUBRO, Effective April 9, 2003
  • SB 179 NEGLIGENT CREDENTIALING, Effective April 9, 2003
  • SB 120 JOINT AND SEVERAL, CONTRIBUTORY FAULT, Effective April 9, 2003
  • HB 412 NURSING HOME, Effective November 7, 2002

3. Retroactivity

Retroactive application of laws are disfavored because of the inherent unfairness of laws not in effect at the time of the Act. Thus, to apply retroactivity, a statute must pass two tests. The first is statutory _____________.
§1.48 provides that: “A statute is presumed to be prospective in its operation unless expressly made retrospective”. The statute must clearly express retroactive intent, or it will be deemed prospective. Nease v. Medical College Hospitals (1992), 64 Ohio St.3d 396, 398.

If the first step of _________ is established, the second test is constitutional. Article II, §28 of the Ohio Constitution prohibits the passage of retroactive laws.

However, this clause prohibits retroactivity of any law which affects substantive, but not remedial, rights. Kiser v. Coleman (1986), 20, 28 Ohio St.3d 259, 262. A statute affects substantive rights when it impairs or takes away vested rights or imposes new additional burdens, duties, or obligations. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d @ 107; modified by Bielat v. Bielat (2000), 87 Ohio St.3d 350.

A statute is remedial or procedural if it “affects merely the methods and procedures by which rights are recognized, protected, and enforced, not…the rights themselves”. State v. Walls (2002), 96 Ohio St.3d 437 @ ¶15.

To summarize, follow these three simple rules to determine whether a statute is retroactive:

  1. The law must clearly state the intent to apply retroactivity. (If it is silent, it is not retroactive.)
  2. Even if the law contains clear retroactive intent, the law is still invalid if it affects substantive rights.
  3. A clearly retroactive law is only valid if it affects remedial (procedural) rights.

I. S. B. 80 – DAMAGE CAPS

A. Effective Date: April 7, 2005.

B. Retroactivity

S.B. 80 contains limited retroactive provisions which involve asbestos claims , and a ten year statute of repose on product liability and construction claims with some exceptions §§§ 2125.02(D)(2)(a); 2305.10(C); 2305.131.

S.B. 80 is silent on the retroactivity of all its remaining provisions which apply to all causes of action that occur on or after April 7, 2005.

C. Main Provisions

§2315.18: Damage Caps

  • S.B. 80’s damage caps apply to all tort actions, including product liability claims, except wrongful death. They are also inapplicable to medical claims (as defined in R.C. 2305.10); Court of Claims and Political Subdivisions claims.
  • No caps for “catastrophic” injury.
  • No caps for economic damages
  • Caps for non-economic damages are limited to the greater of $250,000.00, or three times the economic damages, up to $350,000.00, with a per occurrence limit of $500,000.00.

§2315.21: Punitive Damages

  • Applies to all tort actions, except Court of Claims, Political Subdivisions claims, or to the extent another section of the Code provides a different standard.
  • Absent criminal type intent, limited to two times the compensatory damages – less if Defendant is an individual or small employer.
  • No prejudgment interest.
  • Clear and convincing standard.
  • Bifurcation mandatory upon request.

§2307.711: Product Liability

  • Express/implied assumption of risk is a complete defense to a product liability claim, unless it is a negligence claim against a supplier.
  • Contributory fault or comparative negligence is a defense to a product liability claim.
  • Modifies consumer expectation test to additionally require that plaintiff prove the existence of “ reasonable alternative design”. §2307.75
  • Further restricts punitive damages which are determined by the Court – §2307.80.
  • 10 year statute of repose – §2305.10(C).

§2315.20: Collateral Source

  • Allows defendants to introduce evidence of Plaintiff’s health insurance benefits except those with contractual or statutory subrogation or a self-effectuating Federal right of subrogation.
  • If the defendant elects to introduce such evidence, plaintiff may introduce evidence for the amount paid Plaintiff for the benefit.

II. H. B. 498 – Employer Intentional Torts

A. Effective Date: April 7, 2005.

B. Retroactivity

H. B. 498 is silent on retroactivity, and applies to all workplace intentional torts that occur on or after April 7, 2005.

C. Main Provisions

§2745.01

  • Employer is not liable unless Plaintiff proves deliberate intent (“substantially certain” defined as deliberate intent).
  • Deliberate removal of safety guards and deliberate misrepresentation of toxic substance creates a rebuttable presumption of intent.
  • Note: Comparative fault defense may be applicable. See §2307.011(D) and §2315.32(B).

III. H.B. 292: Asbestos

A. Effective Date: September 2, 2004

IV. H. B. 212: Prejudgment Interest

A. Effective Date: June 2, 2004

B. Retroactivity: Applies to cases pending on or after June 2, 2004.

C. Main Provisions

  • Amends R.C. 1343.03 to reduce percentage of prejudgment interest; and reduce the accrual date.

V. H.B. 161: Savings Statute

D. Effective Date, May 31, 2004

E. Retroactivity, Silent – not retroactive.

F. Main Provisions

  • Amend R.C. 2305.19 to expand savings statute to provide one year regardless of the statute of limitations.

VI. Senate Bill 281: Medical Malpractice Liability

A. Effective Date: April 11, 2003.

B. Retroactivity Applies to medical claims which occur on or after April 11, 2003 (Section 7(A) of S.B. 281).

C. Main Provisions: §2323.43

  • No caps on wrongful death cases.
  • No caps on medical claims against a state college or university since they are already capped under §2345.40(B)(3).
  • No caps on economic loss.
  • Caps for catastrophic, non-economic damages – $500,000.00, with a per occurrence limit of $1 million.
  • Caps for non-catastrophic, non-economic damages are limited to the greater of $250,000.00 or three times the economic damage, up to $350,000.00, with a per occurrence limit of $500,000.00.

VII. S. B. 106 – Political Subdivision Liability

A. Effective Date: April 9, 2003.

B. Retroactivity: S.B. 106 only applies to causes of action which occur on or after April 9, 2003 (Section 3 of S.B. 106).

C. Main Provisions: §2744.02

  • Eliminates the “open and free from nuisance” exception to immunity for defects on public roads. Defines public roads to exclude berms, shoulders, rights-of-way, and non-mandated traffic control devices §2744.01(H).
  • Limits the public grounds exception to physical defects within or on the grounds.
  • Provides an immediate right of appeal when a political subdivision claim of immunity is denied.

VIII. S. B. 227 – Workers Compensation Subrogation

A. Effective Date: April 9, 2003.

B. Retroactivity: The statute §4123.91 is silent on retroactivity, and applies to workers compensation claims that occur on or after April 9, 2003.

C. Main Provisions: §4123.931

  • Provides automatic right of subrogation in workers compensations claims with a formula to determine subrogation.

IX. S. B. 179 Negligent Credentialing

A. Effective Date: April 9, 2003.

B. Retroactivity: The Statute is silent on retroactivity, and applies to any and all negligent credentialing claims that occur on or after April 9, 2003.

C. Main Provisions: §2305.25; §2305.251; §2305.252; §2305.253

  • Modifies existing negligent credentialing statute by creating a rebuttable presumption that a hospital is not negligent in credentialing if it has received accreditation from JCAHO (Joint Committee on Accreditation of Health Care Organizations).
  • Expands the shield of confidentiality for peer review committee members and eliminates the ability to obtain discovery from peer review members to prove negligent credentialing claims.
  • Eliminates discovery of incident reports and risk management reports.

X. S. B. 120: Joint Tortfeasors

A. Effective Date: April 9, 2003.

B. Retroactivity: S. B. 120 only applies to causes of action that occur on or after April 9, 2003 (Section III of S. B. 120).

C. Main Provisions: §2307.011; §2307.22-29; §2315.32-36

  • Applies to all tort claims, including wrongful death.
  • Eliminates joint and several liability for non-economic loss (pain and suffering).
  • Joint and several liability for economic loss exist only when a Defendant is greater than 50% negligent (except for the non-workplace intentional tortfeasor).
  • A jury can now apportion a percentage of fault to a person or entity that is liable but has not been named a party.
  • Repeals §2315.19, Ohio’s comparative negligence statute and replaces it with “contributory fault”.
  • Retains Ohio’s modified comparative negligence status.

XI. H.B. 412 Nursing Home Liability

A. Effective Date: November 7, 2002.

B. Retroactivity: H.B. 412 is silent or retroactive and applies to all nursing home claims that occur on or after November 7, 2002.

C. Main Provisions: §2305.11

  • Defines medical claim to include a nursing home claim.
  • Restricts punitive damages against a nursing home §2315.21(E).

CLEVELAND BAR JOURNAL & CATA NEWS+

My Experience as a Juror by Kenneth J. Knabe

When I arrived home from work in February, I found a jury summons in my mailbox. A mistake, I thought since attorneys are exempt from jury service…


MY EXPERIENCE AS A JUROR

Cleveland Bar Journal and CATA Newsletter

By Kenneth J. Knabe

 

When I arrived home from work in February, I found a jury summons in my mailbox. A mistake, I thought, since attorneys are exempt from jury service. I immediately called the jury commissioner’s office and learned that the law had changed – attorneys are indeed subject to jury service.

After accepting the inevitable, I realized jury service would provide first-hand knowledge about this mysterious group we call “jurors”.

On our first day, we received a pamphlet called “Ohio Guide for Trial Jurors” and saw a locally produced film on jury service. After about 40 minutes, I was in the first group called to a courtroom. We walked down a hallway where a photograph of each and every judge hung on the wall. The photos are very large and conspicuous. To a juror, the judges appear as icons – friends, protectors, supervisors, pseudo parents – since the jurors are under the judge’s charge and control.

The first person we met in the courtroom was the bailiff. Jurors see the judge for the first time on the bench in their formal judicial garb. Jurors instinctively respect the judge and continue to do so whether that judge is friendly, a disciplinarian, or a combination of both. The judge always treats the jurors with respect and deference. As an attorney, you better show respect for the judge because the jurors have already determined the judge should be respected.

Once in the jury room, the jurors mingled uncomfortably. Slowly, after talking to one another and learning more about each other, the ice broke. Ultimately, jurors make a sincere effort to get along.

After a day or two as a juror, each knew the other. By the third day, an entire jury panel could be comprised of previously rejected veteran jurors (we called ourselves “recycled”).

An amazing transformation occurred when I first entered the courtroom, not as an attorney, but as a juror. I calmly walked passed the obviously nervous attorneys watching us. The judges were especially nice to us (and me) since we were not asking for a continuance or arguing evidence (and we were all registered voters!). We were simply there to serve, to aid the judges, as the triers of fact. I was able to just sit back, listen and learn.

The following is a summary of my observations from a juror’s perspective:

  • When trying cases, please get directly to the point. Be as friendly and calm as possible, but drop the omnipresent fake smile. Advise your clients likewise.
  • Avoid pained and animated looks on your face when an objection is made or overruled. Rolling your eyes or looking “how could the judge rule that way” is annoying.
  • Before you address the jury, please check your appearance. One attorney had some suit pockets tucked in and some out. One attorney wore a low-cut dress and had a rash on her chest. The ability of the jurors to concentrate on what the attorney is saying is compromised in these situations.
  • Check the courtroom layout and view from the jury box. For example, the Justice Center in Cleveland has slats on the walls. When attorneys move around in front of those slats, they become blurry. Concentrating on the attorney is impossible.
  • In voir dire, avoid asking jurors leading questions designed to do little more than elicit agreement; the old maxim that jurors should be asked how they feel about certain issues is entirely correct. Jurors who cannot be fair usually say so during the course of questioning, either directly or indirectly. Listen! I heard one juror say that she tried to tell the lawyers and the judge that she could not be fair, but they did not listen. In fact, she did because I heard her say so. However, the criminal defense attorney did not (guilty verdict). If a juror says they doubt they can be fair, they cannot. Do not overkill by trying to determine which jurors to pick or eliminate. If you listen and your gut feeling says that this is a pro-prosecutor, pro-defense, or pro-plaintiff juror, you are probably right. Excusing jurors with your preemptory challenge is not a big mystery. Follow your gut and move on.
  • In one amazing voir dire exchange, a juror said she had a mental problem, was on medication, could not concentrate, and already had a preconceived idea of this particular type of case because of her past life experiences. The judge and the attorneys had a ten minute side bar before the court finally excused this juror for cause. Why? If a juror obviously cannot be fair, the court should remove the juror for cause and move forward. Please save some time.
  • Ask simple, straight forward questions in a calm manner, look the jurors in the eye, and be careful not to condescend or misstate anything. Many of the jurors called the voir dire an “interrogation.” Jurors laughed about one plaintiff’s attorney’s continual animated demonstration of the scales of justice and the blindfold.
  • Have your witnesses prepared. In a criminal case, the police officers knew neither the date of the offense, nor the salient facts. Each had to be completely refreshed. The jurors were insulted, since the witnesses had not even bothered to prepare for their testimony. Jurors will hold the lack of preparation against you.
  • Jurors know they have the power to decide the case; you do not have to remind them. Jurors listen and try to follow the judge’s complicated instructions, but in the end, they usually decide based on their gut feelings. Harkin back to when you first met your client – remember your gut impression, because the jury will remind you of it in their verdict.

Criminal Cases

The defense attorney gave a good opening statement; I felt swayed towards his point of view. However, when he told us that the defendant “just didn’t do this particular crime”, his eyes dropped; he lost eye contact. Jurors notice these types of things.

In a serious triple defendant case, one of the defendants had a suit and a tie on and looked like one of the attorneys, while his co-defendants looked less credible. This defendant did not look worried while his co-defendants looked extremely tense. When a couple of the jurors talked about this after we were excused, several agreed that this defendant did not look worried and appeared to be less culpable than the other defendants. However, one pro-prosecutor juror said this defendant looked calm because he had been “getting away with this his whole life”. This shows how hard it is to predict any absolute based on appearance or attitude and how your point of view affects your perception. By the way, I later learned that all defendants were convicted.

Defense attorneys wisely tell the jury about the burden of proof, that the defendant does not have to testify, and the presumption of innocence. However, avoid doing this 500 times! People learn in threes. Mention these points, ask the jury why they think this is a good law, if they can follow each proposition; and then leave it alone. The jury understands.

I did sit to verdict on a criminal case only because each side had run out of their preemptory challenges by the time I was seated. However, I am told that there are several other attorneys who have been on cases, including a prosecutor who sat on a criminal panel who found the defendant “not guilty”. We deliberated ten minutes before we found the defendant not guilty since the defendant never testified.

Civil Cases

In a civil personal injury case, the McDonald’s verdict came up in voir dire. Be advised that most of the jurors (and judges) think the McDonald’s case is a travesty. Those plaintiffs’ attorneys who try to distinguish it do so at their own peril. If it does come up, simply ask which jurors think the McDonald’s case is frivolous and which jurors would need to know more about it before deciding. The jurors that need to know more about it are probably good plaintiffs’ jurors.

In a civil personal injury case, you better know your client’s injuries. One judge continually drilled a plaintiff’s attorney during voir dire as to the nature and extent of his client’s complicated tendon injuries since there were jurors with prior similar injuries and two doctors on the jury panel. Please do not come to court expecting your expert to explain your client’s injury. You better know it and know it well.

Watch what your clients are doing during voir dire. In a personal injury case, as the judge inquired about the nerve injury to the young plaintiff, she spun around in her chair, touching her hand and jerking it back in pain, blowing on her injury and making a painful face. I know the plaintiff’s attorney did not know this was happening. The point is that the jurors are constantly watching you and your clients.

Conclusion

Jurors are smart, have been “around the block”, and like us, deal with people every day. They know what is happening. They are not strange, unpredictable beings; they are feeling, decent people trying to do the right thing. Since we attorneys are actually people, we are more like them than unlike them. Go inside, live with them for a few days, and you’ll recognize your friends, your neighbors, yourself.

This experience enforces my belief that we attorneys are privileged to be part of the greatest system of justice in the world.

CATA NEWS – CLEVELAND ACADEMY OF TRIAL LAWYERS+

Numerous laws have passed which substantially alter Ohio’s common and statutory tort law. A full assault on Ohio’s tort system is underway.


THE BERNARD FRIEDMAN INSTITUTE SEMINAR

Am. Sub. S. B. No. 120

By Kenneth J. Knabe, March 12, 2004

I. SUMMARY

Am. Sub. S. B. No. 120 (S. B. 120) is a new tort regulation which erases over a century of Ohio jurisprudence. A copy of S. B. 120 is attached to this Article. Under S. B. 120, joint and several liability is reduced or eliminated; uncollectible percentages of fault are lost to liable non-parties; the comparative negligence statute is repealed and replaced with a Acontributory fault@ standard; and Acontributory negligence@ is now admissible in a strict product liability claim.

S. B. 120 eliminates the long established doctrine of full recovery for the plaintiff and actually creates unnecessary litigation; plaintiff=s attorneys must now sue all possible liable parties or lose that percentage of negligence. S. B. 120’s draconian provisions place Ohio law somewhere before 1880 or the pre-industrial revolution. S. B. 120 is open to constitutional attack (See VII, infra).

II. EFFECTIVE DATE

S. B. 120 applies only to torts that occur on or after April 9, 2003; it is not retroactive. (See S. B. 120 Section 3.)

III. JOINT AND SEVERAL LIABILITY

(A) Prior Law

Under the doctrine of joint and several liability, each joint tortfeasor can be held responsible for plaintiff’s entire damages.

This widely accepted doctrine furthers the tort system goals in two ways:

  1. The tortfeasor must accept full responsibility and cannot escape liability by showing someone else is also liable.
  2. The wrongfully injured plaintiff can obtain full satisfaction of damages without limitation or restriction upon the number of defendants contributing. Diamond v. Davis Bakery, Inc. (1966), 8 Ohio St.2d 38, 44.
    Ohio’s statutory right to contribution or indemnity against a joint tortfeasor mitigated this responsibility. (Newly repealed ”2307.31-32; Fidelholtz v. Peller (1998), 81 Ohio St.3d 197, at 202.)

The Ohio Supreme Court, as early as 1880, recognized joint and several liability as Ohio’s common law:

  • The general rule undoubtedly is, that where damage is caused by the joint or concurrent wrongful acts of two or more persons, they may be prosecuted therefore jointly or severally.@ Transfer Co. v. Kelly (1880), 38 Ohio St.86, 90.

This doctrine is as sound today as it was in 1880.

(B) S. B. 120’s New Joint and Several Restrictions (”2307.22-23)

These new joint and several provisions apply to a Atort action@ (‘2307.22(A)(1)). A tort action is a civil action for personal injury, wrongful death, and property damage, including product liability claims(‘2307.011(K)).

Plaintiff’s damages are now classified as Aeconomic loss@ and Anoneconomic loss@. Noneconomic loss is pain and suffering (‘2307.011(F)). Economic loss is medical bills, expenses, wages, property damage, or other actual expenditures (‘2307.011(C)).

S. B. 120’s joint and several liability changes are as follows:

  1. Joint and several liability never exists for noneconomic loss (‘2307.22(C)).
  2. Joint and several liability exists only for economic loss when a defendant is more than 50% negligent, except in an Aintentional tort@ [defined in '2307.011(D) to exclude employer intentional torts] (‘2307.22(A)(1) & (3)).
  3. Thus, no joint and several liability exists for any defendant whose negligence is 50% or less; that defendant is only liable for its proportionate share of the economic and noneconomic loss (‘2307.22(B)). However, see the exception in preceding no. 2.

Finally, a jury can now attribute a portion of Atortious conduct@ to liable non-parties. Liable non-parties are delineated in ‘2307.011(H) as a person from whom the plaintiff does not seek recovery in this action and includes those who have settled, been dismissed, or who were not a party to the tort action whether or not that person could have been a party, if the name of the person has been disclosed prior to trial (‘2307.23(A)(2)). Under previous law, a jury could only apportion a percentage of negligence among the parties to a lawsuit. See Eberly v. A.P. Controls, Inc. (1991), 61 Ohio St. 3d 27 and newly repealed ‘2315.19.

(C) Examples

Negligence claim: plaintiff is negligent free with no liable non-parties.

Defendant A: 55% Tortious Conduct
Defendant B: 45% Tortious Conduct
Total: 100%
Award: $1,000,000 ($500,000 economic loss/$500,000 noneconomic loss)

Defendant A is jointly and severally liable for 100% of the economic loss since AA@ is over 50% negligent ($500,000 economic). AA@ is only liable for its individual share of the noneconomic loss since joint liability never exists for noneconomic loss ($500,000 X .55 = $275,000 noneconomic). Plaintiff’s maximum recovery from AA@ is $775,000. Prior to S. B. 120, Plaintiff could recover the full $1,000,000 from AA@ under joint and several liability.

Defendant B is only individually liable since AB@=s negligence is 50% or less. ($500,000 X .45 = 225,000 economic) ($500,000 X .45 = 225,000 noneconomic). The maximum recovery from AB@ is $450,000. Prior to S. B. 120, Plaintiff could recover the full $1,000,000 from AB@ under joint and several liability.

Other harsh results will occur. Assume Defendant A was a liable non-party or insolvent. The maximum Plaintiff could recover is $450,000 from Defendant B. This new law erodes over a century of Ohio jurisprudence by punishing the negligent free Plaintiff and awarding the tortfeasor, Defendant B, who is at fault and caused damage to the under-compensated Plaintiff.

IV. COMPARATIVE NEGLIGENCE

(A) Prior Law

S. B. 120 repealed Ohio=s modified comparative negligence statute – ‘2315.19 (S. B. 120, Section 2.). Under repealed ‘2315.19, if plaintiff was 50% or less negligent, plaintiff could recover full damages less plaintiff=s percentage of negligence. If plaintiff was 51% or more negligent, plaintiff lost. A seldom used exception in repealed ‘2315.19 eliminated joint and several liability for noneconomic damages only when plaintiff was comparatively negligent.

(B) S. B. 120’s New Contributory Fault Defense (”2315.32-36)

S. B. 120:

  1. Repeals Ohio’s comparative negligence statute and substitutes the affirmative defense of plaintiff=s Acontributory fault@ in a negligence or tort claim involving injury or death, but does not apply to product liability claims (‘2315.32(A)) (see Section V infra);
  2. Contributory fault includes plaintiff=s contributory negligence, other contributory tortious conduct, comparative negligence, or express or implied assumption of the risk. (‘2307.011(B)). Express assumption of the risk occurs when the plaintiff expressly agrees or contracts with the defendant not to sue for any future injuries which might be caused by defendant=s negligence. Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 114, 451 N.E.2d 780. Implied assumption of the risk occurs when plaintiff has knowledge of a condition which is obviously dangerous and voluntarily exposes himself/herself to that risk of injury. Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 114, 451 N.E.2d 780, and Briere v. Lathrop Co. (1970), 22 Ohio St.2d 166, 174-75, 258 N.E.2d 597. Repealed ‘2315.19 also merged contributory negligence and implied assumption of risk defenses per Anderson v. Ceccardi, supra. However, express assumption of the risk was a complete bar to recovery, per common law. Note – Is express assumption of the risk now merged into comparative negligence by its inclusion in this definition of a contributory fault?
  3. Retains Ohio=s modified comparative negligence standard, but reduces plaintiff=s recovery by a percentage of liability attributable to liable non-parties; (‘2315.33) Consequently, a plaintiff still recovers if the plaintiff=s contributory fault is 50% or less than the combined tortious conduct of all other parties and liable non-parties. However, apportioning fault to liable non-parties is another radical departure from existing Ohio law. See Eberly v. A-P Controls, Inc., supra. (See Section III(B)(4), supra).
  4. Incorporates the preceding changes in joint and several liability. (See Section III(B), supra) (”2315.34(D), 2315.35; 2315.36; 2307.011(K)).
  5. 5. Eliminates the defense of plaintiff=s contributory fault in an intentional tort claim (‘2315.32(B)]. However, the intentional tort definition in ‘2307.011(D) excludes employer intentional torts. Defendant employers may attempt to assert contributory fault defense in employer intentional tort claims. However, any statute that abrogates the common law must be strictly construed and the language must clearly show that intent. Carrel v. Allied Products Corp. (1997), 78 Ohio St.3d 284. Plaintiff=s contributory fault could only apply to employer intentional tort claims as an exception to the exception. Absent an express provision that plaintiff=s contributory fault is a defense to an employer intentional tort claim, the common law applies, precluding this defense.

(C) Examples

Example 1:

Negligence claim:

Defendant A: 50% Tortious Conduct
Defendant B: 25% Tortious Conduct
Plaintiff: 25% Contributory Fault
Total: 100%
Award: $1,000,000 ($500,000 economic loss/$500,000 noneconomic loss)

Plaintiff=s $1,000,000 total award is reduced by Plaintiff=s 25% contributory fault to $750,000.00. Defendant A is only individually liable for its proportionate share of Plaintiff=s award ($1,000,000 X .50 = $500,000). Defendant B is also only individually liable for its proportionate share of plaintiff=s award ($1,000,000 X .25 = $250,000). No joint and several liability exists since neither defendant is greater than 50% negligent.

Assume Defendant A is a liable non-party or uncollectible. $500,000 of Plaintiff=s $750,000 award is lost. The maximum plaintiff can collect is $250,000 from Defendant B.

Example 2:

Negligence claim:

Defendant A: 10% Tortious Conduct
Defendant B: 10% Tortious Conduct
Other Liable Non-Parties: 29% Tortious Conduct
Plaintiff: 51% Contributory Fault
Total: 100%
Award: $1,000,000 ($500,000 economic loss/$500,000 noneconomic loss)
Plaintiff loses: 51% or more negligent.

V. PRODUCT LIABILITY

(A) Prior Law

Under Ohio common law applying Section 402(A) of the Restatement of the Law 2d, Torts (1965), comparative negligence was not a defense to a strict product liability claim. Bowling v. Heil Co. (1987), 31 Ohio St.3d 277. In Bowling v. Heil, supra, the Court (Judge Moyer concurring) conducted an exhaustive analysis of strict products liability as it relates to comparative negligence. The Court held that comparative negligence is Afundamentally inapplicable@ to strict product liability claims. Bowing v. Heil, 31 Ohio St.3d at 286. Borrowing from a holding from a Colorado Court, the Court stated AProducts liability under ‘402(A) does not rest upon negligence principles, but rather is premised on the concept of enterprise liability for casting a defective product into the stream of commerce***Thus, the focus is upon the nature of the product, and the consumer=s reasonable expectations with regard to that product, rather than on the conduct either of the manufacturer or of the person injured because of the product. Bowling v. Heil, Ohio St.3d at 285.

(B) S. B. 120’s New Product Liability Defenses (”2315.41-46)

The new product liability defenses are as follows:

  1. AContributory negligence@ is now a defense to a statutory product liability claim under ‘2367.71 et seq. (‘2315.43). Thus, strict product liability is effectively eliminated since no obvious advantage exists over negligence theories; manufacturers now have free reign to focus on the conduct of the worker – not the safety of the machine or product. The costs are no longer borne by the manufacturer and ultimately, by the users, but rather by the consumer-victim.
  2. A contributory negligent plaintiff can still recover if plaintiff=s percentage of negligence is 50% or less than the combined tortious conduct proximately caused by all defendants and liable non-parties (‘2715.43; 2307.23). However, attributing an uncollectible percentage of fault to liable non-parties radically changes Ohio product liability law. See Eberly v. AP Controls, supra. (Section III(B)(4), supra).
  3. Express or implied secondary assumption of the risk may be asserted as a complete bar to a product liability claim (‘2315.42(A)). This is in accord with prior Ohio law, except in a negligent design claim or when the plaintiff had to encounter the risk in the normal performance of plaintiff=s job duties. In negligent design claims, implied/secondary assumption of the risk merged with comparative negligence. See Carrel v. Allied Products Corp., supra, and Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 114, 451 N.E.2d 780. In Creamons v. Willmar (1991), 57 Ohio St.3d 145, the Ohio Supreme Court held that implied/secondary assumption of the risk does not apply when the plaintiff must encounter that risk in the normal performance of plaintiff=s required job duties. Creamons stated that Ohio should move into the >Twentieth Century=@ Creamons, supra, 57 Ohio St.3d at 149. Section 2315.42 should be strictly construed not to change this existing common law. Otherwise, this legislation returns Ohio to the Nineteenth Century – that would be the 1800’s!
  4. Incorporates the joint and several liability changes (See Section III).

(C) Examples:

Example 1:

Product Liability Claim:

Defendant A: 15% Tortious Conduct
Defendant B (previously entered into a settlement agreement with plaintiff): 25% Tortious Conduct
Product Distributor Defendant (dismissed without prejudice): 20% Tortious Conduct
Employer (dismissed without prejudice since no intentional tort claim could be proven): 20% Tortious Conduct
Product Manufacturer: 20% Tortious Conduct
(not sued since could not be served under the Hague Convention)
Total: 100%
Award: $1,000,000 ($500,000 economic loss/$500,000 noneconomic loss)

Under this scenario, plaintiff would only be able to receive $150,000 from Defendant A. This example illustrates issues associated with the meaning of tortious conduct and proximately caused injury. Arguments will have to be made that it makes no sense to include Defendants within an interrogatory against whom a judgment could not be obtained, since the court would be without jurisdiction or because a valid claim does not exist against them. Thus, their conduct could not be considered tortious, and they could not be considered to have proximately caused injury.

VI. CONTRIBUTION/INDEMNITY

(A) Prior Law

Existing Ohio law on contribution and indemnity contained in ‘2307.31-33 is repealed . (S. B. 120, Section 2.).

(B) S. B. 120’s New Contributory/Indemnity Provisions (”2307.25-29)

The new contributory/indemnity provisions provide the following:

  • A joint tortfeasor who has paid more than that tortfeasor=s proportionate share of the common liability has a right of contribution only for the excess of that tortfeasor=s proportionate share (‘2307.25(A)).
  • No right of contribution exists for joint tortfeasors who commit an Aintentional tort@ (‘2307.25(A)). Note, however, that the definition of Aintentional tort@ excludes employer intentional tort claims (‘2307.011(D)).
  • A tortfeasor who enters into a settlement with plaintiff is not entitled to contribution from another joint tortfeasor whose liability is not extinguished by the settlement (‘2307.25(B)).
  • Recovery of a judgment against one tortfeasor does not discharge other tortfeasors from loss unless the full judgment is satisfied (‘2307.25(A)).
  • A defendant who enters into a good faith settlement with the plaintiff, has no liability for contribution to another joint tortfeasor (‘2307.28(B)).
  • A good faith release or covenant to one joint tortfeasor does not discharge other joint tortfeasors unless the terms otherwise provide (‘2307.28(A) & ‘2307.28(B)). Accordingly, release only that party and not Aall liable parties@; also, specifically preserve your claims against Aall other parties@.
  • A joint tortfeasor receives full credit for all sums already recovered by the plaintiff in settlement or covenant, except when it would result in plaintiff=s receiving less than the total amount of compensatory damages (‘2307.28). This changes the holding under Fidelholtz v. Peller, 81 Ohio St.3d 197 (1998) and former ‘2307.32(F), which provided that a set-off occurred only when the settling tortfeasor admitted Aliability in tort@. (See the following example.)

(C) Example:

Medical negligence claim:

Plaintiff settles with Defendant Doctor A for $100,000.00.

Plaintiff then proceeds to trial:
Defendant Doctor A: 33.3% Tortious Conduct
(dismissed w/prejudice)
Defendant Doctor B: 33.3% Tortious Conduct
Defendant Doctor C: 33.3% Tortious Conduct
Total: 100%
Award: $1,000,000 ($500,000 economic loss/$500,000 noneconomic loss)

Defendant A has already settled and that percentage of fault is lost. Plaintiffs should recover $666,666.66 from Defendants A and B which represents their individual percentages of fault since no joint and several liability exists. However, A and B could argue that they are entitled to a credit for $100,000.00 already received by the plaintiff from the settling Defendant A. However, this would result in Plaintiff=s recovery being Aless than the total amount of compensatory damages@ (Sec. VI, (B)(7) above). Thus, Plaintiff still recovers $666,666.66 from Defendants A and B per the exception of full credit in ‘2307.28.

VII. S. B. 120 – CONSTITUTIONAL IMPLICATIONS

(A) Article 1, ’16 – Open Courts

Ohio Constitution Art. 1, ’16 states AAll Courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law and shall have justice administered without denial or delay@.

This powerful Open Court=s provision is also called: ARight to a Remedy@, ADue Process@, or ADue Course of Law@.

The doctrine of joint and several liability is rooted in this provision. The Ohio Supreme Court held that Aa person wrongfully injured in his person is entitled, in the administration of justice, to full satisfaction without limitation or restriction upon the number of defendants contributing to cause such injury@. Diamond v. Davis Bakery, Inc. (1966), 8 Ohio St.2d, 38, 44. The Diamond Court held that a covenant not to sue a joint tortfeasor failed to release another joint tortfeasor.1

Also, a fundamental tort principal is to make the plaintiff whole for his/her injuries. Fantozzi v. Sandusky Cement Products Co. (1992), 64 Ohio St.3d 601.

S. B. 120’s restricts or eliminates joint and several liability; this denies plaintiff full recovery or remedy. This same result occurs by apportioning fault to liable non-parties. (See the examples in Section III(C), supra).

A negligent free plaintiff is the best plaintiff to mount a constitutional attack on S. B. 120’s joint and several and liable non-parties changes. See for example, Transfer Co. v. Kelly, 36 Ohio St. 86 (1880).

These provisions may also violate the jury=s inviolate authority to determine the amount of damages. See Art I, ‘5; Galayda v. Lake Hosp. Sys., Inc. (1994), 71 Ohio St.3d.

(B) Art. I, ’19(A) – Wrongful Death

Ohio Constitution Art. 1 ’19(A) provides the amount of damages recoverable by civil action in the courts for death caused by the wrongful act, neglect, or default of another shall not be limited by law.

S. B. 120 applies to wrongful death actions (‘2307.011(E) and 2307.011(K)) and unconstitutionally limits the plaintiff=s damages by eliminating joint and several liability and recovery for percentages attributed to liable non-parties. (See example in Section III(C), supra).

(C) Art. IV, ‘5(B) – Separation of Powers Art. II, ’32

Art. IV, ‘5(B) provides: AThe Supreme Court shall prescribe rules governing practice and procedure in all courts of the state which rules shall not abridge, enlarge, or modify any substantive right@, and A(a)ll laws in conflict with such rules shall be of no further force and effect after such rules have taken effect.@ Also, Art. II, ’32 prohibits the General Assembly from exercising judicial power.

A defendant can raise the liability of non-parties as an affirmative defense any time before trial (‘2307.23(C)). This unconstitutionality conflicts with controlling Ohio Civil Rule 12 that requires all defenses must be raised in a responsive pleading or by applicable Motion. (See also, Civil Rule 8)

In Rocky v. 84 Lumber Co. (1993), 66 Ohio St.3d, 221, the Court held: AThe Ohio Rules of Civil Procedure, which were promulgated by the Supreme Court pursuant to Section 5(B) Article IV of the Ohio Constitution, must control over subsequently enacted inconsistent statutes purporting to govern procedural matters.@

Legislative infringing on the Court=s rule-making power is a violation of the separation of powers and was one of the primary reasons for the Court determined that S. B. 350 was unconstitutional in State ex rel. Ohio Academy of Trial Lawyers, et al. v. Sheward (1999), 86 Ohio St.3d 451 at page 491. Note that the application of S. B. 120’s restrictions on recovery are via jury interrogatories. This may also infringe on the Court=s powers.

If you can find any other infringement upon the Rules of Civil Procedure or Evidence in S. B. 120, the Court will readily find the statute unconstitutional as a violation of the Separation of Powers, per Sheward, supra.

A similar liable non-party rule in Michigan was struck down under this theory. Staff v. Johnson, 242 Mich. App. 321 (2000)3.

Note that similar provisions on joint and several liability were contained in S. B. 350, which was struck down in Sheward, supra. A violation of separation of power also occurs when the legislators pass laws which the Court has already decreed unconstitutional. However, Sheward never directly addressed this portion of S. B. 350.

(D) Art. II, ’15(D) – One Subject Rule

Art. II, ’15(D) provides ANo bill shall contain more than one subject….@

In Sheward, the Court found that S. B. 350 violated the one subject rule because it contained numerous diverse provisions and the commonality of purpose was attenuated. Under Sheward, the more blatantly unrelated provisions (Alog rolling@), the more likely the law is unconstitutional.

S. B. 120 addresses numerous topics previously addressed. It also contains specials sections on:

1. roller rink liability (‘4171.10); 2. a potential liability for a minor=s temporary permit (‘4507.07); and 3.liability for a taxpayer aggrieved by the Department of Taxation in the Court of Claims (‘5703.54).

S. B. 120 amends ”1775.14; 2315.08; 4171.10; 4507.07; and 5703.54; enacts ”2307.011, 2307.22, 2307.23, 2307.24, 2307.25, 2307.26, 2307.27, 2307.28, 2307.29, 2315.32, 2315.33, 2315.34, 2315.35, 2315.36, 2315.41, 2315.42, 2315.43, 2315.44, 2315.45, and 2315.46; and repeals ”2307.31, 2307.32, 2307.33, 2315.19, and 2315.20. Thus S. B. 120 amends, enacts, or repeals thirty sections of the Ohio Revised Code.

The Constitutional one subject limitation is liberally construed in favor of the General Assembly. However, it appears, at the very least, that the General Assembly obviously Alog rolled@ the provisions on roller rink liability, temporary permits, and taxpayer liability.

(E) Due Process/Equal Protection

Under due process and/or equal protection, a rational basis test exists if a fundamental right is not involved. Under the rational basis test, the challenger of the statute must prove that the statute is arbitrary and unreasonable. See Morris v. Savoy (1991), 61 Ohio St.3d 684; Mominee v. Scherbarth (1986), 28 Ohio St.3d 270; and Schwan v. Riverside Methodist Hospital (1983), 6 Ohio St.3d 300. Morris v. Savoy, supra, holds that AEqual protection of the laws require the existence of reasonable grounds for making a distinction between those within and those outside a designated class.@ Morris, 61 Ohio St.3d at 699, citing State v. Buckley (1968), 16 Ohio St.2d 128. The challenger must demonstrate there was no rational basis for a creation of the class or that those within the class were not being treated equally in furtherance of a legitimate governmental interest.4

S. B. 120 may violate equal protection since the joint and several liability restrictions only apply to tort actions, and not to partnerships (‘1775.14). Also, what rational basis exists for determining that joint and several liability only applies to economic damages v. noneconomic damages or to the over 50% negligent defendant v. the 49% or 50% negligent joint defendant.

If a fundamental right is involved, a strict scrutiny test requires a compelling government justification. Sorrell v. Thevenir (1994), 69 Ohio St.3d 415. If S. B. 120 violates Ohio=s constitutionally protected Open Court/Right to Remedy provision, argue a strict scrutiny standard.

VIII. SUGGESTIONS (Compiled by Kenneth J. Knabe, Richard C. Alkire, Robert F. Linton, and Dennis R. Lansdowne)

  • Challenge the constitutionality of S. B. 120 in your Complaint. Remember to serve a copy of your Complaint on the Attorney General.
  • Sue everyone who is liable in sight – otherwise, a jury may award a percentage of negligence to a liable non-parties leaving your plaintiff with no recovery.
  • Sue several John Does within the statute of limitations. Remember you have a year to name and personally serve your John Does.
  • File early and discover the identity and specific negligent acts of all liable non-parties within the statute of limitations; you can then add them to the lawsuit.
  • Remember, the defendant must actually identify any liable non-parties by name before the trial.
  • Argue that liable non-parties cannot engage in tortious conduct that proximately caused injury, especially if the Court lacks jurisdiction or a valid claim does not exist against them.
  • If the suggestion above fails, request the Court to assess at least a directed verdict standard for all liable non-parties. Remember, the defendant has the burden of proving any contributory fault upon the plaintiff and the defendant should also have the burden of proving fault upon liable non-parties.
  • Maximize recovery – Break down and request recovery on each and every element of economic loss (‘2307.011(C)) and noneconomic loss (‘2307.011(F)). Remember the noneconomic loss elements in Fantozzi, supra – loss of enjoyment of life and basic activities are missing from the statutory definition of noneconomic damages in ‘2307.011(F) – include them!
  • When partially settling with a joint tortfeasor, release only that tortfeasor and preserve all claims against all other liable parties.

James F. Szaller
About
Accreditations
Publications
James F. Szaller+

Attorney James F. Szaller is the products liability and general tort law attorney for the law firm of Brown & Szaller.

James Szaller is a nationally recognized Plaintiff’s personal injury Attorney with the highest Peer rating from Martindale Hubbell. He is the original founder of the Law firm of Brown and Szaller. He has appeared numerous times in the Wall Street Journal and New York Times. He has recovered several million of dollar on behalf of his injured clients. He won the prestigious Distinguished Service Award from the Ohio Academy of Trial Lawyers for his outstanding  efforts on behalf of Ohio Consumers. He also received the 2007 Litigation Group Award from the American Association for Justice, the national Plaintiff’ Association championing the rights of personal injury victims.

James has published numerous legal Articles; was an editor for Law Review and also taught products liability at Cleveland Marshall College of Law. He is also a recent Board Member of Public Justice who champions the rights of the underprivileged on a national basis.  He volunteered to represent a fire-fighters family pro-bono in the 911 tragedy. He was Cuyahoga Community College’s first president and is a life-long Clevelander.

Court Admissions+

Ohio Supreme Court, and all courts in Ohio, 1975.
United States Supreme Court, 1982.
United States Sixth Circuit Court of Appeals, 1983.
United States Fourth Circuit Court of Appeals, 1986.
U.S. District Court, Northern District of Ohio, 1975.

Law+

Cleveland State University, Cleveland Marshall College of Law. Received J.D. cum laude in 1975.
Editor, The Cleveland State Law Review.
Editor and originator of Exegesis, appearing in the Cuyahoga County Bar Journal, Law and Fact.
Published Law Review articles:
a. Semachko v. Hopko: Ohio's Marketable Title Act Comes to the Fore, 23 Cleve. St. L. Rev. 337 (1974).
b. Scienter and Rule 10b-5: Development of a New Standard, 23 Cleve. St. L. Rev. 493 (1974) (co-authored with Alan J. Ross).
c. The Intrauterine Device: A Criticism of Governmental Complaisance and an Analysis of Manufacturer and Physician Liability, 24 Cleve. St. L. Rev. 247 (1975) (co-authored with Walter Lee McCombs).

Law Awards: Cleveland State University+

Corpus Juris Secundum Award: Graduating Senior Contributing Most to Legal Scholarship. This award is granted annually by vote of the faculty.
Ohio Title Corporation Award: best Law Review article relative to real property.
W.H. Anderson Company Award. This award is granted annually to the Editor of the Cleveland State Law Review who has contributed the most meritorious article to the Review.
Sindell Tort Competition Award. Granted by vote of the Editorial Board of Review to the Editor contributing the most meritorious article on a subject related to torts or evidence.
The Law Review Outstanding Achievement Award. First recipient of this award, granted by the Review for independent achievements in research and writing.
Nominated by the Dean for the Dean's Award to the Most Deserving Graduate in the class of 1975.

Undergraduate+

Cleveland State University, College of Arts and Sciences. B.A. degree
Cuyahoga Community College, College of Arts and Sciences. Received A.A. degree in English in June 1967.
First Student Council and Class President of Cuyahoga Community College (the first junior college in the state of Ohio).

Professional Associations+

Ohio State Bar Association
Cleveland Bar Association
The American Association for Justice
Ohio Academy of Trial Lawyers
Cleveland Academy of Trial Attorneys

Law and Other Directory Listings+

Martindale-Hubbel Law Directory. Rating: A-V (highest rating for attorneys).

Other Published articles+

Divide and Conquer, James F. Szaller and Gerald S. Leeseberg, 39 Trial 42, September 2003.
Nonparty Discovery in Drug Cases, James F. Szaller and Jeff Gibson, 43 Trial 46, September 2007.

Other Awards+

Distinguished Service Award from the Ohio Academy of Trial Lawyers, 1996. Awarded for efforts on behalf of Ohio Consumers.
Litigation Group Award, 2007, from American Association for Justice.

Press Release+

LAW SCHOOL ACQUIRES FAMED TORT CASE PAPERS
Havard Law School Library Press Release

By Ross A. MacDonald, October 2, 2000

Harvard Law School's Langdell Library is set to acquire the copious legal papers of the plaintiffs in a landmark mass tort case.

The collection amassed by the plaintiffs in the Dalkon Shield case, a series of lawsuits against the makers of a flawed contraceptive that lasted for almost a quarter-century, is one of the largest such collections in the country.

The Ohio law firm Brown and Szaller donated the papers.

The gift will "allow students to become familiar with the kinds of materials they'd see in a mass tort case," said David R.Warrington, librarian for special collections at the law school.

Brown and Szaller Managing Attorney James F. Szaller, who had been involved in the suits' litigation since 1975, decided to donate the massive archive to Harvard because the files would otherwise have been destroyed.

Szaller said he believes the collection is an ideal case study in mass tort and product liability law. Since the law is always evolving, he said, the completeness and breadth of the material will offer law students an opportunity to see the development of one of the earliest mass tort cases during its lengthy time in court.

Mass tort cases are a relatively new and increasingly important field. Dalkon Shield was one of the first such cases and helped establish U.S. legal precedent on the subject.

At various times, nearly 100 firms from around the world used the data compiled by Brown and Szaller to pursue civil actions against the makers of the Dalkon Shield, an intrauterine contraceptive introduced in the American market in 1971 by the A. H. Robins Company.

Billed as safer than birth control pills, some 3.6 million units were sold in the U.S. The shield was pulled from the market in 1974 after design defects and poor medical directions were accused of causing injuries and sterility.

Despite Robins' contention that the shield was safe if used properly, a growing docket of claims followed the contraceptive into retirement. Robins fought lawsuits until 1985, when it sought bankruptcy protection from litigants.

Under bankruptcy laws, Robins won substantial victories to narrow the pool of eligible claimants and limit its damages. But it was unable to escape the wave of suits, and by the time the pool fund for plaintiffs' settlements closed this April it had paid out nearly $3 billion in reparations to women injured by the shield.

The material donated by Szaller includes trial transcripts, medical information on the shield's effects, documents relating to Robins' bankruptcy proceedings, depositions and testimony from expert witnesses and from every major Robins officer.

The Dalkon collection joins a large group of historical sources at Langdell, including the papers of Supreme Court justices Oliver Wendell Holmes, Class of 1861, Felix Frankfurter, the letters of Sacco and Vanzetti and documents from the Nuremberg war trials.

The Dalkon papers will be among the law school's largest collections, occupying about 185 linear feet of drawer space.

The library's materials are open to Harvard students and are also of particular interest to social scientists and historical researchers as well as legal scholars, said David A. Ferris, curator of rare books and manuscripts at Langdell.

Librarians are reviewing the documents and have not determined when they will be available to the public, law school officials said.

Szaller's firm updated the indices before sending the files, but an index of the contents by box and folder must be prepared before the collection can be added to HOLLIS and opened to the public.