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:
- Actual Text
- Effective Date
- 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:
- The law must clearly state the intent to apply retroactivity. (If it is silent, it is not retroactive.)
- Even if the law contains clear retroactive intent, the law is still invalid if it affects substantive rights.
- 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).
