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A CASE STUDY Robert A. Bunda Bunda Stutz & DeWitt, PLL 3295 Levis Commons Blvd. Perrysburg, Ohio 43551 419-241-2777 © Robert A. Bunda.

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Presentation on theme: "A CASE STUDY Robert A. Bunda Bunda Stutz & DeWitt, PLL 3295 Levis Commons Blvd. Perrysburg, Ohio 43551 419-241-2777 © Robert A. Bunda."— Presentation transcript:

1 A CASE STUDY Robert A. Bunda Bunda Stutz & DeWitt, PLL 3295 Levis Commons Blvd. Perrysburg, Ohio 43551 419-241-2777 rabunda@bsd-law.com © Robert A. Bunda 2009

2 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]

3 APPLIES TO NEGLIGENCE CASES APPLIES TO PRODUCTS CASES NON-PARTIES MAY BE ASSIGNED A SHARE OF FAULT CONTRIBUTORY 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)]

4 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]

5 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

6 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]

7 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

8 JOINT AND SEVERAL LIABILITY: THE BAD GUYS PAY CONTRIBUTORY NEGLIGENCE: PLAINTIFF DOESNT 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 PLAYERS MORE ACCURATELY REFLECTS REALITY COMPROMISE: SOME ELEMENTS OF THE OLD SYSTEM RETAINED THE REST OF THE LEGAL WORLD WAS CHANGING

9 Contributory Negligence Was a Complete Bar under the Common Law until 1980 R.C. 2315.19, the Comparative Negligence Statute, enacted in 1980 Wilfong v. Batdorf (1983), 6 Ohio St. 3d 100 (Justice Clifford Brown) Held the statute to be remedial, and therefore could be applied retroactively (Irrationally concluded…, Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100) Changed the Common Law to apply comparative negligence Products Liability Cases were Excluded, Bowling v. Heil Co. (1987), 31 Ohio St. 3d 277 [design defect case; Court applied insurance theory of strict liability, finding negligence different from strict liability.]

10 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 plaintiffs fault is greater than combined fault of defendants Assumption of the risk (implied and express) is a complete bar Effective date: April 9, 2003

11 Joint and Several was a Common law doctrine Ohio 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, 124 th 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, 125 th General Assembly]

12 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

13 MULTI-DEFENDANT CASES ASBESTOS SILICA OTHER MULTIPLE SUPPLIERS OTHER RESPONSIBLE ENTITIES EMPLOYERS NEGLIGENT PHYSICIANS CO-WORKERS FOREIGN ENTITIES NOT SUBJECT TO JURISDICTION BANKRUPT OR DEFUNCT ENTITIES US GOVERNMENT CO-MORBIDITIES CIGARETTE COMPANIES ONLY REQUIREMENT: TORTIOUS CONDUCT

14 SETTLED PARTIES DISMISSED PARTIES DEFENDANTS OBTAINING SUMMARY JUDGMENT? ELIMINATES CROSS-CLAIMS FOR CONTRIBUTION CHANGES THIRD-PARTY PRACTICE AND STRATEGY FORCES PLAINTIFFS TO BE MORE DILIGENT IN RESEARCHING AND PREPARING THEIR CASE CHANGES THE FIDELHOLTZ DYNAMIC (Fidelholtz based on the contribution statutes requirement that there must be joint tortfeasors.) [Fidelholtz v. Peller (1998), 81 Ohio St..3d 197]

15 Plaintiff (admissions to averments in the answer?) Prior cases (interrogatories; depositions; collateral estoppel?) Plaintiffs experts Plaintiffs fact witnesses Independent research Defendant Defendants experts Documents

16 PRODUCTS LIABILITY CASE INJURY: JUNE, 2003 PRODUCT: POOL CHLORINATOR

17 PLAINTIFFS: MARY LUCAS AND ROBERT HERTZFELD DEFENDANT: HAYWARD POOL PRODUCTS POTENTIAL RESPONSIBLE ENTITIES: HELLE POOLS AND PIRELLI POOLS POTENTIAL CONTRIBUTORY FAULT: MARY LUCAS FAILURE TO CLEAN, SEALING THE VESSEL AND WHACKING IT WITH A HAMMER AFTER WINTER STORAGE POTENTIAL PLAINTIFFS COUNSELS CONFLICT: MARY AS A CROSS-CLAIM DEFENDANT CAUSING ROBERTS INJURIES by her contributory negligence

18 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 defendants evidence) IS THE ANYTIME BEFORE TRIAL A STATUTORY REQUIREMENT THAT SUPERCEDES THE TRIAL COURTS DISCRETION TO DENY LEAVE TO AMEND? DO WE NEED NEW RULES? NEW CASE MANAGEMENT DEADLINES? DONT LEAVE PREPARATION OF YOUR JURY INSTRUCTIONS ON PROPORTIONATE LIABILITY UNTIL THE EVE OF TRIAL

19 HOW WILL PLAINTIFFS COUNSEL RESPOND TO THIS NEWLY DEVELOPING AREA? MUCH OF YOUR EVIDENCE WILL HAVE TO COME FROM PLAINTIFFS COMPLAINTS, 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?

20 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

21 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.

22 New York: Verdict - $16,925,000 Why? Trial Defendants eat the shares of non-parties California: Verdict - $2,000,000 Why? Proportionate liability for non-economic damages (pain and suffering; loss of consortium), but joint and several liability for economic damages Ohio: Verdict: $84,625 Why?.5% proportionate liability for the entire verdict

23 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


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