JOINT and SEVERAL LIABILITY for ECONOMIC DAMAGES for a DEFENDANT RESPONSIBLE for MORE THAN 50% of the FAULT [Sec. 2307.22(A)(1)]

PROPORTIONATE LIABILITY for ECONOMIC DAMAGES for THOSE DEFENDANTS 50% or LESS at FAULT, and for ALL DEFENDANTS for NON-ECONOMIC DAMAGES [2307.22(A)(2), in cases where a defendant is more than

50% at fault, 2307.22(A)(4), where a defendant is in a case with an intentional tort defendant, 2307.22(A)(4) where no defendant is more than 50% at fault, 2307.22(C) for all noneconomic damages]

APPLIES TO NEGLIGENCE CASESAPPLIES TO PRODUCTS CASESNON-PARTIES MAY BE ASSIGNED A SHARE

OF FAULTCONTRIBUTORY FAULT APPLIES:

50% or LESS FAULT BY PLAINTIFF: REDUCES DAMAGES [2315.33]

MORE THAN 50% FAULT: COMPLETE DEFENSE [2315.35]

ASSUMPTION OF THE RISK (either express or implied) IS A COMPLETE DEFENSE IN A PRODUCTS CASE [2307.711(B)(2)]

IMPLIED ASSUMPTION OF THE RISK BY PLAINTIFF IS TREATED AS BEING CONTRIBUTORY FAULT IN A PRODUCTS ACTION AGAINST A SUPPLIER [2307.711(b)(3)]

Does not apply to intentional tort cases [2307.22(a)(3), no

proportionate liability; 2307.711(B)(1), no assumption of the risk defense; 2315.32(B), no contributory fault defense]

But, the definition of “intentional tort claim” does not include a claim by an employee against the employer arising from employee conduct on the work site [2307.011(D)]

Translation: The proportionate liability, contributory fault and proportionate liability principles may apply to an employment intentional tort claim

Contribution exists, but only for a defendant greater than 50% liable, and who may claim others bear some responsibility [2307.25; 2307.29]

CONTRIBUTION IS DOLLAR FOR DOLLAR SET OFF (as opposed to pro rata share), AND ONLY FOR THOSE WHO ARE MORE THAN 50% LIABLE

NO CONTRIBUTION RIGHT FOR THOSE WHO ARE 50% OR LESS LIABLE

CROSS-CLAIMS FOR CONTRIBUTION? WHY?

MAY ALSO AFFECT TRIAL STRATEGY REGARDING THIRD-PARTY ACTIONS

The OHIO SUPREME COURT in Wilfong v. Batdorf (1983), 6 Ohio St. 3d 100 approved COMPARATIVE NEGLIGENCE, and PROPORTIONATE LIABILITY AMONG DEFENDANTS PURSUANT TO THE EXERCISE OF A CONTRIBUTION RIGHT, but JOINT and SEVERAL LIABILITY WAS THE GENERAL RULE [2315.19]

DID NOT APPLY TO PRODUCTS CASES [Bowling v. Heil Co.(1987), 31 Ohio St.3d 277]

ASSUMPTION OF THE RISK was a fault based defense [Jones v. White Motor Corp. (1978), 61 Ohio App. 2d 162]

FAILURE TO WARN STRICT LIABILITY CASE “kind of like” NEGLIGENCE (but without the availability of contributory negligence) [Crislip v. TCH Liquidating Co. (1990), 52 Ohio St. 3d 251]

1988 TORT REFORM ACT – Products liability statute adopted, but joint and several liability continues, with a right of contribution

The Ohio Supreme Court fights back: common law products liability claims still exist [Carrel v. Allied Products (1997), 78 Ohio St.3d 284]

HB 350 – proportionate liability adopted in 1996, along with a host of other tort law reforms

State ex rel. Ohio Academy of Trial Lawyers v. Sheward [(1999), 86 Ohio St.3d 451]

2003 Am. Sub. S.B. 120 - Effective 4/9/03; adopts proportionate liability

2005: Am. Sub. S.B. 80 - Effective 4/7/05; adopts more tort reform, including merging the bifurcated proportionate liability rules for negligence and products law

JOINT AND SEVERAL LIABILITY: THE “BAD GUYS” PAY

CONTRIBUTORY NEGLIGENCE: PLAINTIFF DOESN’T DESERVE TO RECOVER IF AT FAULT IN ANY WAY

PROPORTIONATE LIABILITY: EACH PARTY IS RESPONSIBLE FOR THE WRONG THAT PARTY DID

REASONS FOR THE CHANGE:UNFAIR TO MINOR ROLE PLAYERSMORE ACCURATELY REFLECTS REALITYCOMPROMISE: SOME ELEMENTS OF THE OLD SYSTEM

RETAINEDTHE REST OF THE LEGAL WORLD WAS CHANGING

Most jurisdictions adopted comparative fault by modifying the common law

Ohio did it by statute in 2003: R.C. §2315.43 “Contributory negligence or other contributory tortious conduct may be asserted as an affirmative defense to a product liability claim…..The compensatory damages recoverable by the plaintiff shall be diminished by an amount that is proportionately equal to the percentage of negligence or other tortious conduct of the plaintiff…”

Complete bar where plaintiff’s fault is greater than combined fault of defendants

Assumption of the risk (implied and express) is a complete bar

Effective date: April 9, 2003

Joint and Several was a Common law doctrineOhio Supreme Court was asked to modify the common law

to apply comparative negligence in 1980, and it deferred, indicating the General Assembly should act [Baab v. Shockling (1980), 61 Ohio

St.2d 55] In 1980 the General Assembly acted, providing

comparative negligence, but only between parties to the case, and only in a situation where there was contributory negligence by plaintiff [Eberly v. A-P Controls, Inc. (1991) 61 Ohio St.3d 27]

In 2003, The General Assembly enacted proportionate liability for “tortious conduct” by more than one defendant, R.C. §2315.32-2315.36, and a separate provision involving proportionate liability for products cases, §2315.43-2315.46 [Am. Sub. S.B. 120, 124th General Assembly]

In 2005, The General Assembly merged the products portion into the general proportionate liability provisions, R.C. §2307.711(A) [Am. Sub. S.B. 80, 125th General Assembly]

HOW? AMENDED ANSWER TO ASSERT ADDITIONAL

AFFIRMATIVE DEFENSE [R.C. §2307.23(C)

JURY ALLOTS PERCENTAGES OF FAULT IN JURY INTERROGATORIES [R.C.§2307.23]

WHEN?“AT ANY TIME BEFORE THE TRIAL OF THE ACTION.”

[2307.23(c)]

WHO? PERSONS WHO HAVE SETTLED, HAVE BEEN

DISMISSED WITH OR WITHOUT PREJUDICE, OR WHO ARE NOT PARTIES (“WHETHER OR NOT THAT PERSON WAS OR COULD HAVE BEEN A PARTY TO THE TORT ACTION IF THE NAME OF THE PERSON HAS BEEN DISCLOSED PRIOR TO TRIAL”) [2307.011(g)]

BURDEN of PROOF? IS ON DEFENDANTS, AS IN ALL AFFIRMATIVE

DEFENSES

MULTI-DEFENDANT CASESASBESTOSSILICAOTHER MULTIPLE SUPPLIERS

OTHER RESPONSIBLE ENTITIESEMPLOYERSNEGLIGENT PHYSICIANSCO-WORKERSFOREIGN ENTITIES NOT SUBJECT TO JURISDICTIONBANKRUPT OR DEFUNCT ENTITIESUS GOVERNMENT

CO-MORBIDITIESCIGARETTE COMPANIES

ONLY REQUIREMENT: “TORTIOUS CONDUCT”

SETTLED PARTIESDISMISSED PARTIESDEFENDANTS OBTAINING SUMMARY

JUDGMENT?ELIMINATES CROSS-CLAIMS FOR

CONTRIBUTIONCHANGES THIRD-PARTY PRACTICE AND

STRATEGYFORCES PLAINTIFFS TO BE MORE DILIGENT IN

RESEARCHING AND PREPARING THEIR CASECHANGES THE FIDELHOLTZ DYNAMIC

(Fidelholtz based on the contribution statute’s requirement that there must be “joint tortfeasors.”)[Fidelholtz v. Peller (1998), 81 Ohio St..3d 197]

Plaintiff (admissions to averments in the answer?)

Prior cases (interrogatories; depositions; collateral estoppel?)

Plaintiff’s expertsPlaintiff’s fact witnessesIndependent researchDefendantDefendant’s expertsDocuments

PRODUCTS LIABILITY CASEINJURY: JUNE, 2003PRODUCT: POOL CHLORINATOR

PLAINTIFFS: MARY LUCAS AND ROBERT HERTZFELD

DEFENDANT: HAYWARD POOL PRODUCTSPOTENTIAL RESPONSIBLE ENTITIES:

HELLE POOLS AND PIRELLI POOLSPOTENTIAL CONTRIBUTORY FAULT: MARY

LUCAS’ FAILURE TO CLEAN, SEALING THE VESSEL AND WHACKING IT WITH A HAMMER AFTER WINTER STORAGE

POTENTIAL PLAINTIFFS’ COUNSEL’S CONFLICT: MARY AS A CROSS-CLAIM DEFENDANT CAUSING ROBERT’S INJURIES by her contributory negligence

KEEP PROPORTIONATE LIABILITY PRINCIPLES AND STRATEGY IN MIND THROUGHOUT DISCOVERY

SEEK LEAVE TO AMEND AFFIRMATIVE DEFENSES TO STATE A CLAIM AGAINST NONPARTIES WELL BEFORE TRIAL (due process requires notice; a generic affirmative defense may not be sufficient; plaintiffs need discovery of and a right to challenge defendant’s evidence)

IS THE “ANYTIME BEFORE TRIAL” A STATUTORY REQUIREMENT THAT SUPERCEDES THE TRIAL COURT’S DISCRETION TO DENY LEAVE TO AMEND?

DO WE NEED NEW RULES? NEW CASE MANAGEMENT DEADLINES?

DON’T LEAVE PREPARATION OF YOUR JURY INSTRUCTIONS ON PROPORTIONATE LIABILITY UNTIL THE EVE OF TRIAL

HOW WILL PLAINTIFF’S COUNSEL RESPOND TO THIS NEWLY DEVELOPING AREA?

MUCH OF YOUR EVIDENCE WILL HAVE TO COME FROM PLAINTIFFSCOMPLAINTS, INTERROGATORY RESPONSES, AND OTHER AREAS (e.g., trust fund applications) WILL CHANGE

HOW WILL THE COURTS RESPOND TO THIS STATUTE?

NEW YORK EXPERIENCE; BEWARE OF EXTREME APPLICATIONS; BEWARE OF APPEALS WITH BAD FACTS

DO WE EXPLAIN TO JURIES HOW THIS WORKS?

Los Angeles Jury Awards Meso Sufferer $16.93 Million, Crane Co. 0.5 Percent Liable

 Case name:  Dennis Woodard, et al. v. Alfa Laval Inc., et al.  Case number:  BC387774  Court:  Calif. Super., Los Angeles Co

Verdict / Settlement (breakdown):  $16,925,000 million plaintiff's verdict ($12.5 million for pain and suffering, $2.5 million for loss of consortium and $1,925,000 million in economic damages)

  Plaintiff(s):  Dennis Woodard, Myra Jean "Jeannie" Woodard  Defendant(s):  Crane Co., Sepco Corp.

 

Date:  Feb. 2, 2009

Background: Plaintiffs filed suit in the Los Angeles County Superior Court, alleging that his pleural mesothelioma was caused by exposure to asbesto while serving aboard the USS Rogers and USS Salisbury Sound as an electrician's mate from 1961 to 1965, where he performed work close to valves, steam lines, pumps, turbines and control panels.  Dennis Woodard was diagnosed in January 2008 and underwent both a lung and diaphragm removal.    At trial, only claims against Sepco Corp. and Crane Co. remained.  The Woodards' claims against Crane Co. and Sepco included allegations that they supplied asbestos-containing products used aboard Navy ships.

  Injury:  Mesothelioma

Defense:  Crane Co. argued that the chrysotile asbestos in its products and the small amounts released could not have caused Dennis Woodard's disease and that more likely the cause was exposure to asbestos in pipe insulation.  Sepco argued that that there were several companies named Sepco at the time Dennis Woodard served aboard the Navy vessels and that it did not supply products to the Navy.

Other:  The trial lasted three weeks.  The deliberated for 2-1/2 days before finding Crane Co. not liable on negligence but liable for failure to warn.  The jury held Crane Co. 0.5 percent liable and apportioned the remaining liability as follows:  85 percent to the Navy, 10 percent to nonspecified insulation manufacturers and 4.5 percent to the remaining de minimus defendants.  Sepco was not found liable. 

New York: Verdict - $16,925,000Why? Trial Defendants eat the shares of non-

parties

California: Verdict - $2,000,000Why? Proportionate liability for non-economic

damages (pain and suffering; loss of consortium), but joint and several liability for economic damages

Ohio: Verdict: $84,625Why? .5% proportionate liability for the entire

verdict

Los Angeles Jury Awards $8.02M For Man's Meso Case name:  John Nolen v. Allied Minerals Inc., et al.; Court:  Calif. Super., Los Angeles

Co. 

Verdict: (breakdown):  $8,021,887 plaintiff verdict ($521,887 in economic damages, $2.5 million for pain and suffering and $5 million for loss of consortium) 

Plaintiff(s):  John "Mike" Nolen  Defendant(s):  Foster Wheeler Corp.

  Date:  Jan. 29, 2009

  Injury:  Malignant mesothelioma

  Other:  The jury deliberated for three days before returning its verdict.  The jury apportioned

20 percent of the liability to the sole remaining defendant at trial, Foster Wheeler, and 80 percent to "all others.“

Calif. Verdict Molding: 20% x $7.5 million = $1.5 million for non-economic, + $521,887 = $2,0021,887