IN THE SUPREME COURT OF OHIO
DOUGLAS GROCH et al, On Questions Certified by the United States Petitioners, District Court for the Northern District of V. Ohio, Western Division GENERAL MOTORS CORPORATION, et al Case No. 2006-1914
Respondents U.S. District Court Case No. 3:06-CV-1604
MERIT BRIEF OF PETITIONER, DOUGLAS GROCH, VOLUME ONE
. Kevin J. Boissoneault # 0040180 * Robert H. Eddy # 0030739 Counsel of Record Counsel of Record Theodore A. Bowman #0009159 * GALLAGHER SHARP Russell Geniey # 0080186 420 Madison Avenue, Suite 50 Bonnie E. Haiins # 0072465 * Toledo, Oh 43604 GALLON, TAKACS, BOISSONEAULT (419) 241-4860 & SCHAFFER Co. L.P.A. * (419) 241-4866 - fax 3516 Granite Circle Counsel for Respondents, Kard Corporation Toledo, OH 43617-1172 * and Racine Federated, Inc. (419) 843-2001 (419) 843-6665 - fax Stephen Paul Caniey # 0063460 Counsel for Petitioner State Solicitor Douglas Groch Counsel of Record Elise W. Porter # 0055548 Assistant Solicitor 30 East Broad Street, 17t" Floor Columbus, OH 43215 Counselfor Respondent, State of Ohio
Kimberly A. Conklin # 0074726 Counsel of Record KERGER & ASSOCIATES 33 S. Michigan Street, Suite 100 Toledo, OH 43604 (419) 255-5990 (419) 255-5997 Counselfor Respondent, General Motors Corporation
LwOrrces0= GNLLCN.Tq1UC5.SOISSONEAUIT & SCHPFFER CO., LP.0. THEJACKGALLON6UILOING 8516 GqANITECIRCLE TOLEDO,OH1043617-11*8
m David C. Vogel (MO # 45937) Patrick Fanning (MO # 47615) LAT14ROP & GAGC L.C. 2345 Grand Boulevaid, Suite 2800 Kansas City, Missouri 64108-2612 (816) 292-2000 (816) 292-2001 - fax
of Counsel for Respondent, General Motors Corporation
w, o.fw^ D^ ;AI.LON, TqKACg, 801390NEAULT SSCHqFFEHCO.,L.P.A THE JACK OALLON BUIIDINO 9518OHFIJREqRCLE TOLEDO, OHI04%iT-11R 11 e^m TABLE OF CONTENTS
TABLE OF CONTENTS ...... p. iii.
TABLE OF AUTHORITIES ...... p. vi.
STATEMENT OF THE CASE ...... p. 1.
STATEMENT OF FACTS ...... p. 1.
Proposition of Law No. 1 p. 2. The statute of repose codified in R.C. 2305.10 denies injured Ohioans open access to the courts and the right to remedy for their injuries in violation of Section 16, Article I of the Ohio Constitution.
Proposition of Law No. 2 p. 9. The statute of repose codified in RC. 2305.10 denies injured Ohioans due process of law contrary to the mandate of Section 16, Article I of the Ohio Constitution.
Proposition of Law No. 3 p. 16. The statute of repose codified in R.C. 2305.10 is an unconstitutional taking of private property under Section 19, Article I of the Ohio Constitution.
Proposition of Law No. 4 p. 19. The statute of repose codi£ed in R.C. 2305.10 denies equal protection under the law certain plaintiffs contrary to the mandate of Section 2, Article I of the Ohio Constitution.
Proposition of Law No. 5 p. 22. R.C. 2305.10, as applied herein, retroactively extinguishes a substantive right in violation of Section 28, Article II of the Ohio Constitution.
Proposition of Law No. 6 p. 27. SB 80 violates Section 15, Article II of the Ohio Constitution which mandates that no bill shall have more than one subject and that bills with more than one subject mus.t be invalidated in toto.
Proposition of Law No. 7 p. 36. The Workers' Compensation subrogation statutes violate Section 16, Article I of the Ohio Constitution by denying injured workers who settle their third-party tort claims due process of
ni law as a result of failing to provide a proceeding by which those injured workers who settle their third-party claims may overcome the statutory presumption of double recovery.
Proposition of Law No. 8 p. 42, The Workers' Compensation subrogation statutes violate Section 19, Article I of the Ohio Constitution by improperly taking private property where injured workers are compelled to disgorge money obtained as a result of settling a third-party tort claim based upon the statutes' de facto irrebuttable presumption of double recovery.
Proposition of Law No. 9 p. 44. The Workers' Compensation subrogation statutes violate Section 2, Article I of the Ohio Constitution in that in an action between the statutory subrogee and the claimant the party asserting the claim, the statutory subrogee, (i.e. the plaintiff in that action) is given a statutory presumption of recovery versus the defendant in that action.
CONCLUSION ...... p. 46.
CERTIFICATE OF SERVICE ......
APPENDICES Order of the United States District Court for the Northern District of 1. Ohio Western Division Certifying Questions to the Supreme Court of Ohio filed October 11, 2006
Order of the United States District Court for the Northern District of 2. Ohio Western Division Certifying Questions to the Supreme Court of Ohio filed November 27, 2006
Order of the Supreine Court of Ohio filed December 27, 2006 3.
Petitioner's Complaint filed in the Lucas County Court of Common Pleas June 2, 2006
Section 2, Article I of the Ohio Constitution 5.
Section 16, Article I of the Ohio Constitution 6.
Section 19, Article I of the Ohio Constitution 7.
Section 15, Article II of the Ohio Constitution 8.
iv Section 28, Article II of the Ohio Constitution 9.
R.C. 2305.10 (2005) 10.
R.C.2305.10 11.
END OF VOLUME ONE
Senate Bi1180 12.
Legislative Service Conunission, SB 80, Final Analysis 13.
R.C. 4123.93 14.
R.C.4123.931 15.
Letter of Bennet M. Miller dated February 13, 2007 16.
v TABLE OF AUTHORITIES
CASES
Bane One Dayton v. Limbach, (1990) 50 Ohio St. 3d 163 ...... p. 20.
Beaele v. Walden, ( 1997) 78 Ohio St. 3d 59 ...... p. 31.
Brennaman v. R.M.I. Comnany, (1994) 70 Ohio St. 3d 460 ...... pp. 5-7.
Bowling v. Heil Co., (1987) 31 Ohio St. 3d 277 ...... p. 13.
Caldwell v. Village of Carthage, (1892) 49 Ohio St. 334 ...... :...... p. 10.
Cincinnati Bar Association v. Bailey, (2006) 110 Ohio St. 3d 223 ...... p. 10.
City of Norwood v. Hornev, (2006) 110 Ohio St. 3d 353 ...... p. 18, 37.
Commissioners v. Gates, (1910) 83 Ohio St. 19 ...... p. 17.
Dumi v. Blumstein, (1972) 405 U.S. 330 ...... p. 11.
Gaines v. Preterm-Cleveland, Inc., (1987) 33 Ohio St. 3d 54 ...... pp. 3, 5.
Gonzales v. 0 Centro Espirita Beneficente Uniao Do Vegetal, (2006) 546 U.S. 418 ...... p. 11.
Gregory v. Flowers, (1972) 32 Ohio St. 2d 48 ...... pp. 22, 25.
Hardy v. Vermeulen, (1987) 32 Ohio St. 3d 45 ...... pp. 3, 4, 6, 26.
Holeton v. Crouse Cartage Co., (2001) 92 Ohio St. 3d 115...... pp. 17, 36, 38, 39, 42-45.
In re Nowak, (2004) 104 Ohio St. 3d 466 ...... pp. 27, 28, 32-34.
Ledex v. Heatbath Corp., (1984) 10 Ohio St. 3d 126 ...... p. 19.
Kintz v. Harrieer, (1919) 99 Ohio St. 240 ...... p. 33.
Marbury v. Madison, (1803) 5 U.S. 137 ...... p. 33.
Menefee v. Queen City Metro, (1990) 49 Ohio St. 3d 27 ...... p. 44.
Menifee V. Ohio Welding Products, Inc., (1984) 15 Ohio St. 3d 75 ...... p. 13.
vi Modzelewski v. Yellow Freight Systems, Inc., (2004) 102 Ohio State 3d 192 ...... pp. 17, 36, 43.
Mominee v. Scherbarth et al., (1986) 28 Ohio St. 3d 270 ...... pp. 3, 4, 7, 11, 25.
Park Corp. v. City of Brook Park, (2004) 102 Ohio St. 3d 166 ...... p. 20.
San Antonio Independent School District v. Rodriguez, (1973) 411 U.S. 1 ...... p. 11.
Sikorski v. Link Electric & Safety Control Co., (8t" App. Dist. 1997) 117 Ohio App. 3d 822 ...... p. 14.
Sorrell v. Thevenir, (1994) 69 Ohio St. 3d 415 ...... p. 9.
Southward v. Jamison, (1902) 66 Ohio St. 290 ...... pp. 10, 27.
State ex rel. Dix v. Celeste, (1984) 11 Ohio St. 3d 141 ...... p. 28.
State ex rel. Hinkle v. Franklin County Board of Electors, (1991) 62 Ohio St. 3d 145 ...... p. 32.
State ex rel. HoldridF4e v. Industrial Conunission of Ohio, (1967) 11 Ohio St. 2d 175 ...... p. 23.
State ex rel. Kilbum v. Gurad, (1983) 5 Ohio St. 3d 21 ...... p. 10.
State ex rel. Ohio Academy of Trial Lawyers v. Sheward, (1999) 86 Ohio St. 3d 451 ...... :...... pp. 6, 28, 30.
State ex rel. Ohio AFL-CIO v. Voinovich, (1994) 69 Ohio St. 3d 225 ...... pp. 31, 32.
State ex rel. Teamsters Loca1377 v. Youn^ s town, (1977) 50 Ohio St. 2d 200...... p. 8.
State of Ohio v. Buckley et al., (1968) 16 Ohio St. 2d 128 ...... p. 44.
State of Ohio v. LaSalle, (2002) 96 Ohio St. 3d 178 ...... p. 23.
State of Ohio v. Thompson, (2002) 95 Ohio St. 3d 264 ...... pp. 10, 21.
Steinfitrth v. Armstrone World Industries, (Cuyahoga Co. 1986) 27 Ohio Misc. 2d 21 ...... p. 15.
Taylor v. Yale Towne Manufacturing Co., (9t App. Dist. 1987) 36 Ohio App. 3d 62 ...... p. 14.
Van Fossen v. Babcock & Wilcox Co., (1988) 36 Ohio St. 3d 100 ...... p. 23,
vii Westfield Insurance Co. v. Galatis, (2003) 100 Ohio St. 3d 216 ...... :.p. 32.
STATUTES
R.C. 2307.75 ...... p. 15.
R.C. § 2305.10 (2005) ...... p. 6, 7, 24.
R.C. § 4123.93 ...... pp. 43, 45.
R.C. § 4123.931 ...... pp. 40, 41, 43, 45.
OHIO CONSTITUTION
OH CONST. Section 2, Article I ...... p. 20.
OH CONST. Section 16, Article I ...... pp. 3, 9.
OH CONST. Section 19, Article I ...... p. 16, 36.
OH COtvsT. Section 15, Article II ...... p. 27.
OH CONST. Section 28, Article II ...... p. 22.
OTHER
Senate Bi1180 ...... pp. 11-12.
Legislative Service Commission, SB 80, Final Analysis ...... p. 29.
v1ll STATEMENT OF THE CASE
The matter originated in the Court of Common Pleas in Lucas County Ohio as a result of a Complaint filed by Petitioner on June 2, 2005. The action was then removed to federal court by Defendant/Respondent GM.
The federal Court issued an order submitting eight questions of law to the Ohio
Supreme Court on October 11, 2006. A second order certifying a ninth question was issued on November 27, 2006. By Order dated December 27, 2006 the Ohio Supreme
Court accepted all nine Certified Questions.
STATEMENT OF FACTSI
Douglas Groch was injured on March 3, 2005 when the trim press he was operating came down on his right arm an3 wrist. At the tinie of his injury Petitioner was
acting in the course and scope of his employment with Defendant General Motors
Corporation. The trim press that he was using was manufactured by Defendants Kard
Corporation and Racine Federated, Inc.
On June 2, 2006, Groch brought an action in the Court of Common Pleas, Lucas
County, Ohio seeking damages from Defendant General Motors Corporation ("GM") based on a theory of employer intentional tort and from Defendants Kard Corporation and
Racine Federated, Inc. (respectively, "Kard" and "Racine") based on a theory of product liability. His daughter, Chloe Groch, sought damages for loss of consortium.
' All facts are from the October 11, 2006 Order of the United States District Court for the Northem District of Ohio, Western Division, attached as Appendix 1; the November 27, 2006 Amended of the United States District Court for the Northern District of Ohio, Westetn Division, attached as Appendix 2; the December 27, 2006 Order of the Ohio Supreme Court attached as Appendix 3; and the Petitioner's Complaint attached as Appendix 4.
1 The action was removed to federal court by GM. Federal jurisdiction is based on
28 U.S.C. 1332 because there is diversity between the Plaintiffs and the Defendants, and the amount in controversy exceeds $75,000.00.
GM has asserted a subrogation interest in Groch's recovery for its payment to him of workers' compensation benefits. Groch asserts that the Ohio statutes granting GM subrogation interests-R.C. 4123.93 and R.C. 4123.931-are unconstitutional. To fully adjudicate this matter and determine the rights and liabilities of each party, the federal court determined that it needed guidance from the Ohio Supreme Court regarding the constitutionality of the statutes under the Ohio Constitution so it certified three questions to the Ohio Supreme Court on the constitutionality of R.C. 4123.93 and R.C. 4123.931.
Kard and Racine have asserted that they are immune from liability based on the statute of repose for products liability claims provided at R.C. 2305.10. To fully adjudicate this matter and fully determine the rights and liabilities of each party, the federal court determined that it needed guidance from the Ohio Supreme Court regarding the constitutionality of the statutes under the Ohio Constitution so it certified five questions to the Ohio Supreme Court on the constitutionality of R.C. 2305.10 as amended by Senate
Bill 80 (SB 80). The federal court later certified a ninth question to Ohio Supreme Court asking whether or not SB 80 violated Article II, Section 15, the one-subject rule, of the
Ohio Constitution.
Proposition of Law No. 1 The statute of repose codified in R.C. 2305.10 denies injured Ohioans open access to the courts and the right to remedy for their injuries in violation of Section 16, Article I of the Ohio Constitution.
A. Section 16, Article I of the Ohio Constitution requires open access to the courts and guarantees that all persons injured in person or property shall be afforded the right to seek remedy for such injuries.
2 Section 16, Article I of the Ohio Constitution provides, in pertinent part:
All courts shall be open, and every person, for injwy 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. OH CONST. Section 16, Article I.
Although this Court has not previously considered the products liability statute of repose in the matter sub judice, it has considered previous statutes of repose and their constitutionality pursuant to Article 16, Section I of the Ohio Constitution. As the discussion below will demonstrate, there is not a single extant decision of this Court upholding a statute of repose against a challenge grounded in the open courts and right to remedy clauses of Section 16, Article I of the Ohio Constitution.
The proper point of departure for a consideration of this Court's prior holdings on the constitutionality of statutes of repose is a trio of decisions addressing a statute of repose for medical nialpractice clairns: Mominee v. Scherbarth, (1986) 28 Ohio St. 3d 270; Hardy v. Vermeulen, (1987) 32 Ohio St. 3d 45; and Gaines v. Preterm-Cleveland, Inc., (1987) 33
Ohio St. 3d 54. The statute of repose at issue in these cases provided, "an individual with a claim for medical malpractice is required to commence suit within one year from the date the cause of action accrued, or four years from the date the alleged malpractice occurred, whichever comes first." Mominee, 28 Ohio St. 3d at 273. In addition, the statute also provided that it was excepted "from the `disabilities' tolling statute provided in R.C.
2305.16. Under the [version at issue] only minors under the age of ten had their limitations period tolled, but only until they reached their fourteenth birthday, by which time they had to file their clann." Id.
3 The issue before the Court in Mominee was whether the statute of repose, as it applied to minors, was constitutional. The Mominee Court found that "the sum and substance of [the exception from the `disabilities' tolling statute] is that a minor shall have no standing to sue before reaching the age of majority, and no right to bring suit thereafter.
Such, in our view, is totally unreasonable and patently arbitrary." Id. at 275. As a result of that finding, the Court held that statute of repose to be "unconstitutional as applied to minors under the due course of law provisions of the Ohio Constitution." Id. at 276. In so doing the Court upheld the principal that the "Ohio due process or due course of law provisions require that all courts be open to every person who is injured." Morninee, at
275.
In Hardy v. Vermeulen, the plaintiff had surgery on his ear in 1973. Hardy, 32 Ohio
St. 3d at PRIOR HISTORY. He did not discover his injury until 1984. Id. Plaintiff filed suit, but the trial court sustained a motion to dismiss on the ground that the plaintiff's claim was barred by the medical malpractice statute of repose. Id. The court of appeals affirmed the trial court's decision. Id
This Court reversed the judgment of the lower court squarely holding that the statute of repose was repugnant to Section 16, Article I of the Ohio Constitution. In so holding the Hardy Court noted that the "right-to-a-remedy provision of Section 16, Article
I does not require the analysis of rational-basis that is used to decide the due process or equal protection arguments against the constitutionality of legislation. The fault in the
[medical malpractice statute of repose] is that it denies legal remedy to one who has suffered bodily injury. This the legislature may not do even if it acted with a rational basis." Hardy, at 48.
4 In Gaines v. Preterm-Cleveland Inc. the Court held that the statute of repose was unconstitutional where it shortened the time available to injured persons to file their claims to less than that provided in the statute of limitations. Gaines, 33 Ohio St. 3d at
SYLLABUS. This final holding effectively ended the statute of repose for medical malpractice because it could only apply in situations where it did not shorten the statute of limitations. The Gaines Court held that the medical malpractice statute of repose not only violated the equal protection clause in Section 2, Article I of the Ohio Constitution (Id. at
59) but also the right to remedy clause of Section 16, Article I based on the principal that denial "of a remedy and denial of a meaningful remedy lead to the same result: an injured plaintiff without legal recourse. This result cannot be countenanced." Id. at 60 (italics in original).
While each of these decisions dealt with medical malpractice claims, the critical point common to all is the insistence of this Court that legislation which effectively slams the courthouse door in the face of a citizen seeking redress for harm to his person, property or reputation cannot be reconciled with the requirements of Section 16, Article I of the
Ohio Constitution. Moreover, subsequent decisions of this Court have made it clear beyond any reasonable dispute that this constitutional mandate applies to claims and causes of action outside the area of medical malpractice. In Brennaman v. R.M.I.
Company, (1994) 70 Ohio St. 3d 460, the Court considered a statute of repose which terminated the right to sue for negligent improvements to real property once ten years elapsed from the date the tortfeasor last rendered the flawed service. Brennaman, 70 Ohio
St. 3d at 463.
5 The Court in Brennaman held that "[a]t a minimum, Section 16, Article I requires that the plaintiffs have a reasonable period of time to enter the courthouse to seek compensation after the accident ... [the statute of repose] effectively closes the courthouse
...in contravention of the express language of Section 16, Article I, thereby violating constitutionally protected rights." Brennaman, at 466. (internal quotations and citations omitted). The Brennaman Court continued stating, "we reopen the courthouse doors by declaring that [the statute of repose] violates the right to a remedy guaranteed by Section
16, Article I of the Ohio Constitution, and is, thus, unconstitutional." Id at 466-467.
This Court has stated succinctly and with complete clarity that the language of
Section 16, Article I "is clear and leaves little room for maneuvering. Our courts are to be open to those seeking remedy for injury to person, property or reputation." Hardy, at 46.
This basic concept was reinforced when this Court noted that the concept of a statute of repose violated the remedy by due course of law and open courts provisions of Section 16,
Article I. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, (1999) 86 Ohio St. 3d
451, 477.
B. R.C. 2305.10 is expressly intended to foreclose access to the courts and to bar the prosecution of claims for relief where the injury occurs after an arbitrarily selected date.
R.C. 2305.10 provides, in pertinent part, "Except as otherwise provided ... no cause of action based on a product liability claim shall accrue against the manufacturer or supplier or a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used as a component in the production, construction, creation, assembly, or rebuIlding of
6 another product." R.C. 2305.10(C)(1).2 This statute is clearly designed to preemptively bar a cause of action based simply on the age of the device which caused the injury.
It is also worthwhile to consider the language in this statute as opposed to the language used in the previous statutes of repose found to be unconstitutional by this court.
The statute found unconstitutional in the MornineelHardy/Gaines trio provided, in pertinent part, "In no event shall any medical claim against a physician, podiatrist, or a hospital or a dental claim against a dentist be brought more than four years after the act or omission occurred." Morninee, at PRIOR HISTORY. The statute of repose at issue in
Brennantan provided, in pertinent part:
No action to recover damages for any injury to property, real or personal, or for bodilyinjury or wrongful death, arising our of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of said injury, shall be brought against any person performing services for or fiu-nishing the design, planning supervision or construction, or construction of such improvement to real property, more than ten years after the performance or furnishing of such services and construction. Brennaman, at 463.
As noted above, the statute of repose at issue in this matter provides, "Except as otherwise provided ... no cause of action shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used as a component in the production, construction, creation, assembly or rebuilding of another product." R.C. 2305.10(C)(1). Petitioner believes that the State will attempt to distinguish
Z R.C. 2305.10 was amended by SB 17 passed by the 126a' General Assembly and a section was added pertaining to actions brought be victims of childhood sexual abuse, thus what was section (F) in the prior statute is section (G) in the current statute. All references in the text of this brief shall refer to the statute as it was numbered on the date of Petitioaer's injury. The substance of the sections Petitioner claims are unconstitutional is the same in both versions of the statute. Copies of both versions of the statute are attached as appendices 10 (version operative in 2005) and 11.
7 the statute of repose from the previous ones stricken by this Court on the ground that the prior statutes precluded a claim from being brought while the current statute prevents a claim from accruing. However, the change from "no action shall be brought" to "no action shall accrue" is a distinction without a difference.
Although no specific definition exists, it is well understood that a "cause of action" is nothing more than an injury or wrong suffered by a person for which the law provides remedy. The cause of action accrues at "such time as the infringement of a right arises. It is at this point that the time within which a cause of action is to be commenced begins to run." State ex rel. Teamsters Local 377 v. Youngstown, (1977) 50 Ohio St. 2d 200, 203-
204. A statute of r.epose cannot prevent a cause of action from accruing. To say so is mere sophistry. A statute of repose in purpose and effect is and can only be an attempt to deny access to the courts to persons seeking a remedy for harm to person or property.
In the case at bar, as in every other case, Petitioner's cause of action in product liability accrued when his injury was sustained. No legal or factual issue concerning the viability of the claim in light of the statute of repose can be raised for decision until a) the cause of action has accrued and b) the suit thereon has commenced. At this point, and not before the Respondents have occasion to assert the statute of repose in an attempt to bar prosecution of Petitioner's claim.
C. Because the express purpose and effect of R.C. 2305.10 is to deny access to the courts and foreclose all opportunity to seek a remedy, R.C. 2305.10 must be found unconstitutional.
The statute of repose in the instant matter terminates the right to sue for products liability after ten years have elapsed from the date the product was delivered to its first end-user. Despite the legislature's attempts to distinguish this statute of repose it suffers
8 from the same constitutional defects as the ones struck down in the
Mominee/Hardy/Gaines trio and in Brennaman in that it denies legal remedy to one who has suffered bodily injury. This Court has consistently held that under the Ohio
Constitution the legislature may not deny legal remedy to one who has suffered bodily injury. The language in the statute regarding preventing a cause of action from accruing and any argument offered in support of that notion is simply elevating form over substance. The fact is, R.C. 2305.10 denies legal remedy to one who has suffered bodily injury. Therefore, it is in violation of the open courts and right to remedy provisions of
Article 16, Section I of the Ohio Constitution.
Proposition of Law No. 2 The statute of repose codified in R.C. 2305.10 denies injured Ohioans due process of law contrary to the mandate of Section 16, Article I of the Ohio Constitution.
Section 16, Article I of the Ohio Constitution provides, in pertinent part:
All courts shall be open, and every person, for 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. OH CONST. Section 16, Article I.
A. The "due process of law" clause in Section 16, Article I of the Ohio Constitution is equivalent to the "due process" clause of the Fourteenth Amendment.
It is important to note that this Court has held that the "remedy by due course of law" clause in the Ohio Constitution is the equivalent of the "due process" clause in the
Fourteenth Amendment to the United States Constitution. Sorrell v. Thevenir, (1994) 69
Ohio St. 3d 415, 422. Furthermore, Sorrell teaches that a statute that impinges upon a constitutionally protected fundamental right must be exaniined by the Court using strict
9 scrutiny. Sorrell, at 423. This Court has recently reaffirmed its holding in Sorrell by holding:
all statutes are subject to at least rational-basis review, which requires that a statutory classification be rationally related to a legitimate govemment purpose. When a discriminatory classification based on sex or illegitimacy is at issue, we employ heightened or intermediate scrutiny and require that the classification be substantially related to an important governmental objective. And when classifications affect a fundamental constitutional right, or when they are based on race. or national origin, we will conduct a strict-scrutiny inquiry. This latter level of scrutiny demands that a discriminatory classification be narrowly tailored to serve a compelling state interest. State of Ohio v. Thompson, (2002) 95 Ohio St. 3d 264, 266-267 (internal citations omitted).
B. Due process of law is a fundamental right which requires, at a minimum, the opportunity to be heard.
"Due process of law implies a due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights." Caldwell v. Village of Carthage, (1892) 49 Ohio St. 334, 348. "It is a fundamental doctrine in the law of procedure that a party who is affected by the judgment must have his day in court
..." Southward v. Jamison, (1902) 66 Ohio St. 290, 312-313. "[D]ue process requires notice and an opportunity to be heard." State ex rel. Kilbum v. Gurad, (1983) 5 Ohio St. 3d
21, 22. "[G]eneral mandates of due process ... require notice and meaningful opportunity to be heard." Cincinnati Bar Association v. Bailey, (2006) 110 Ohio St. 3d 223, 227.
There can be no principled dispute that due process is a fundamental right enshrined in our constitution for the benefit and protection of all. This fundamental right requires that a party have meaningful opportunity to be heard. A statute of repose, by its very nature, preemptively denies this right by denying an injured party access to the courthouse--the venue where citizens exercise their constitutionally protected right to have a meaningful opporhxnity to be heard. This denial of access to the courthouse is an
10 abrogation of the right to have a meaningful opporhmity to be heard. As observed by this
Court in Mominee, "Ohio due process or due course of law provisions require that all courts be open to every person who is injured." Mominee, at 275.
C. R.C. 2305.10 denies certain persons injured by defective products the right to be heard in a judicial forum and thereby violates the "due course of law" clause of Section 16, Article I of the Ohio Constitution.
R.C. 2305.10, when applied in the claims of Douglas and Chloe Groch, extinguishes their right to be heard on their product liability claims. The right to be heard is the keystone of due process. The statute of repose impinges upon this constitutionally protected fundamental right. Therefore, it is subject to strict scrutiny.
It has long been understood that under strict scrutiny analysis, once the party challenging the statute meets the burden of showing that a fundamental interest has been impinged upon, the burden then shifts to the State to prove that the statute is necessary to promote a compelling government interest. see e.g. Dunn v. Blumstein, (1972) 405 U.S.
330, 343; San Antonio Independent School District v. Rodriguez, (1973) 411 U.S. 1, 17-
18; Gonzales v. 0 Centro Espirita Beneficente Uniao Do Veeetal, (2006) 546 U.S. 418,
126 S. Ct. 1211, 1220. The State will be unable to meet its burden.
D. The General Assembly's own findings prove that the statute of repose is not necessary to promote a compelling government interest.
The General Assembly declared in its findings and intent:
(C) In enacting division (D)(2) of section 2125.02 and division (C) of section 2305.10 of the Revised Code in this act, it is the intent of the General Assenibly to do all of the following: (1) To declare that the ten-year statute of repose prescribed by division (D)(2) of section 2125.02 and division (C) of section 2305.10 of the Revised Code, as enacted by this act, are specific provisions intended to promote a, greater interest than the interest underlying the general four-year statute of limitations prescribed by section 2305.09 of the Revised Code, the general two-year statutes of limitations prescribed by sections 2125.02
I1 and 2305.10 of the Revised Code, and other general statutes of limitations prescribed by the Revised Code; (2) To declare that, subject to the two-year exceptions prescribed in division (D)(2)(d) of section 2125.02 and in division (C)(4) of section 2305.10 of the Revised Code, the ten-year statutes of repose shall serve as a limitation upon the commencement of a civil action in accordance with an otherwise applicable statute of limitations prescribed by the Revised Code; (3) To recognize that subsequent to the delivery of a product, the manufacturer or supplier lacks control over the product, over the uses made of the product, and over the conditions under which the product is used; (4). To recognize that under the circumstances described in division (C)(3) of this section, it is more appropriate for the party or parties who have had control over the product during the intervening time period to be responsible for any harm caused by the product; (5) To recognize that, more than ten years after a product has been delivered, it is very difficult for a manufacturer or supplier to locate reliable evidence and witnesses regarding the design, production, or marketing of the product, thus severely disadvantaging manufacturers or suppliers in their efforts to defend actions based on a product liability claim; (6) To recognize the inappropriateness of applying current legal and technological standards to products manufactured many years prior to the commencement of an action based on a product liability claim; (7) To recognize that a statute of repose for product liability claims would enhance the competitiveness of Ohio manufacturers by reducing their exposure to disruptive and protracted liability with respect to products long out of their control, by increasing finality in commercial transactions, and by allowing manufacturers to conduct their affairs with increased certainty; (8) To declare that division (D)(2) of section 2125.02 and division (C) of section 2305.10 of the Revised Code, as enacted by this act, strike a rational balance between the rights of prospective claimants and the rights of product manufacturers and suppliers and to declare that the ten-year statutes of repose prescribed in those sections are rational periods of repose intended to preclude the problems of stale litigation but not to affect civil actions against those in actual control and possession of a product at the time that the product causes an injury to real or personal property, bodily injury, or wrongful death; SB 80 Section 3(C), pp. 72-73--attached as Appendix 12.
12 According to the General Assembly's findings, the statute of repose passed in SB
80 and codified at R.C. 2305.10 is "rational" but nowhere in its findings of fact does the
General Assembly declare that the statute of repose is necessary to promote a compelling government interest. In fact, the findings of the General Assembly do not seem to be related to any Ohio interests compelling or otherwise.
Looking at the fmdings seriatim, it becomes clear that no compelling interest is articulated by the General Assembly. Subsections (1) and (2) do not provide any rationale for the passage of the statute of repose. Subsections (3) and (4) provide that the consumer or purchaser of the product should be liable for any defect after tein years because said parties have control over the uses of the product and conditions in which the product is used. The finding, however, only repeats basic defenses available to manufacturers without the imposition of the statute of repose. In fact, almost twenty years prior to the passage of SB 80, this Court held "Under strict tort liability principles for the design of a product, a manufacturer need not anticipate all the uses to which its product may be put, nor guarantee that the product is incapable of causing injury in all of its possible uses."
Menifee v. Ohio Welding Products, Inc., (1984) 15 Ohio St. 3d 75, SYLLABUS.
Therefore, under Ohio law prior to the passage of SB 80, a party defending in a products liability suit could defend based on misuse of the product. Furthermore, a party defending in a products liability suit also has available two affirma.tive defenses. First, "an otherwise strictly liable defendant has a complete defense if the plaintiff voluntarily and knowingly assumed the risk occasioned by the defect" Bowling v. Heil Co., (1987) 31 Ohio St. 3d
277, 282 (emphasis added). Moreover, "such a defendant is also provided with a complete defense if the plaintiff misused the product in an unforeseeable manner." Bowling, 31 Ohio
13 St. 3d at 282 (emphasis added). Under Ohio products liability law, there is no duty to warn where a danger is open and obvious. Taylor v. Yale Towne Manufacturing Co., (9`h App.
Dist. 1987) 36 Ohio App. 3d 62, 63. Finally, Ohio products liability law provides that a manufacturer is not liable for injuries caused by modifications made to a product by third parties. Sikorski v. Link Electric & Safety Control Co., (8h App. Dist. 1997) 117 Ohio
App. 3d 822, 833-834 (citing various cases).
In subsection (5) the General Assembly contends that it is difficult to locate materials relating to a product once it has been out of the manufacturer's hands for more than ten years. This argument fails based on logical and practical trial experience.
First, the argument is illogical because in order to gain the benefit of the statute of repose, the manufacturer will need to keep records of its products for at least as long a period of time as they do now. The statute of repose is an affirmative defense. As such, the burden of proof will be on the manufacturer to produce records showing that the product in question has been out of its hands for a period of more than ten years. In the absence of such a showing, there can been no affirtnative defense. Thus, manufacturers will need to continue to maintain records.
Second, the absence of records regarding a product is a greater handicap to a plaintiff trying to prove a defect than it is to the manufacturer. In a products liability case the burden of proof is one the plaintiff to show that the product is question is defective.
Absent such a showing, the plaintiff cannot prevail--there is no presumption of defect in a products liability case. Therefore, it is the plaintiff who is in greater need of the old records to prove that the product was defective when it left the manufacturer's hands.
14 Finally, modem technology has greatly reduced the burden of storing old records.
Paper records that would have filled a warehouse can now be stored digitally in a space about the size of a briefcase. This is most evident in the legal profession. Many private fums have greatly reduced or completely done away with their libraries instead relying on one of the electronic legal document services for there research needs. A number of county courthouses have also either greatly reduced or completely done away with their libraries. The notion that document storage and retrieval is clumsy, cumbersome and burdensome is just not true in the age of digital document storage technology.
In subsection (6), the General Assembly suggests that the statute of repose will prevent the application of current technological standards to older products. This is simply an incorrect finding. There is no statutory or case law which provides that in a products liability case an older product must conform to current technological standards. In fact, there is law to the contrary. The express language of 2307.75 provides that liability only attaches to a manufacturer where the product was defective at the time it left the manufacturer's control. R.C. 2307.75 (emphasis added). Furthermore, if products were subject to current standards, then there would be no need of "state-of-the-art" experts to testify as to scientific and technological knowledge available at the time a product was manufactured. (for an example of a "state-of-the-art" expert see Steinfurth v. Armstrong
World Industries, (Cuyahoga Co. 1986) 27 Ohio Misc. 2d 21.
Subsection (7) provides that the statute of repose will "enhance the competitiveness of Ohio manufacturers ...." However, as the instant matter demonstrates, one of the actual effects of the statute of repose is to allow an out-of-state manufacturer (in this case
Respondent Kard) to escape liability while leaving a company that was manufacturing in-
15 state, (in this case GM) completely liable and without any way to seek indemnification or contribution from the out-of-state manufacturer. Thus, in this case, the statute of repose is actually harming a company manufacturing in Ohio. This case leads to the conclusion that there is really no relationship between the statute of repose and enhancement of competitiveness of Ohio manufacturers.
Finally, subsection (8) provides that the statute of repose is designed to strike a rational balance between the rights of claimants and the rights of product manufacturers.
This finding is inapposite. The fact is under strict scrutiny the law must be necessary to for a compelling government interest--not merely rational.
F. Because R.C. 2305.10 denies due process by extinguishing the fundamental right to be heard, it must be found unconstitutional.
Taken as a whole, the reasons for passing the statute of repose do not rise to the level of being necessary for a compelling government interest. If fact, when examined closely, the reasons offered by the General Asseinbly are insufficient to satisfy even rational basis review. Because the state cannot meet its burden to demonstrate that the statute of repose codified at 2305.10 is necessary to meet a compelling government interest, the mandate of Section 16, Article I requires that it be stricken as unconstitutional.
Proposition of Law No. 3 .The statute of repose codified in R.C. 2305.10 is an unconstitutional taking of private property under Section 19, Article I of the Ohio Constitution.
Private property shall be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefore shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.
16 OH CONST. Section 19, Article I.
A. A person who has sustained bodily injury caused by the fault of another has a property interest in his claim for relief.
The property right protected by Article I, Section 19 is not limited to real property.
In both Holeton v. Crouse Cartage Co., (2001) 92 Ohio St. 3d 115 and Modzelewski v.
Yellow Freight Systems, Inc., (2004) 102 Ohio St. 3d 192 this Court found that the prior workers' compensation subrogation statutes violated Article I, Section 19 by improperly taking the tort award received by an injured worker. The Holeton Court held that whether
"expressed in terms of the right to private property, remedy, or due process, the claimant- plaintiff has a constitutionally protected interest in his or her tort recovery" Holeton, 92
Ohio St. 3d at 122.
B. Any actual and material interference with a property interest is a taking of property within the meaning of Section 19, Article I of the Ohio Constitution.
It has long been understood that "any actual and material interference with private property rights is a taking of property within the meaning of the constitution."
Commissioners v. Gates, (1910) 83 Ohio St. 19, 24. In the case at bar, an accrued right to bring suit was terminated by the legislature. Such a material interference with the right to sue (a property right) offends Article I, Section 19 of the Ohio constitution. In the case at bar, the taking is affected by means of an actual and material interference with a private property right much like the interference seen in Holeton and Modzelewski. Thus, for reasons similar to those found to make the workers compensation subrogation statutes unconstitutional in Holeton and Modzelewski the statute of repose found at R.C. § 2305.10 is an unconstitutional taking of private property.
17 In the instant matter the Petitioner was injured by a product manufactured by
Respondent Kard. The cause of action at that moment accrued because that was the precise instant when the Petitioner sustained harm to his person. Petitioner initiated this lawsuit. Kard has asserted the statute of repose as an affirmative defense. This matter could not have been decided on the basis of a 12(B)(6) motion. Kard is required to bring forth affirmative evidence that the product has been out of its hands for more than ten years. If Kard is able to make such a showing, Petitioner will be divested of his cause of action. Thus, unlike a statute of limitations which simply defmes the time during which a party may exercise his property rights pursuant to an accrued cause of action, the statute of repose divests the party of his property without compensation.
C. R.C. 2305.10 constitutes an actual and material interference with Petitioner's property interest in his claim for relief for bodily injury caused by the machine manufactured by Respondents Kard and Racine and therefore violates Section 19, Article I of the Ohio Constitution.
"There is no doubt that the bundle of venerable rights associated with property is strongly protected in the Ohio Constitution and must be trod upon lightly, no matter how great the weight of other forces." City of Norwood v. Homey, (2006) 110 Ohio St. 3d 353,
363. This is because "Ohio has always considered the right of property to be a fundamental right." City of Norm,ood, 110 Ohio St. 3d at 363. Therefore, the statute of repose must come under strict scrutiny as a result of the fact it is impinging upon a recognized fundamental right.
As noted in the previous section, the statute of repose will not withstand strict scrutiny. In the case at bar, the statute is actually protecting an out-of-state manufacturer while divesting both the Petitioner and the Respondent GM of vested property rights. The
Petitioner's property right to his cause of action has been taken by the state by means of
18 the statute of repose. In addition, GM's right to seek recovery of workers' compensation costs paid to Douglas Groch from the vendor whose defective machine caused Groch's injury3 has likewise been taken by means of the statute of repose. Under the Ohio
Constitution, the legislature simply cannot capriciously divest parties of vested rights in property regardless of whether it is for the benefit of the public or a private party.
Ostensibly, the intent of the General Assembly in enacting the product liability statute of repose is to advance the public interest in fostering business and creating an economic environment conducive to growth and prosperity for employers and employees alike. Laudable as that goal may be, the legislature is not at liberry to advance it by depriving an arbitrarily selected class of people of their constitutionally protected property interests in causes of action for bodily injury based on product liability. The individuals divested of their property are not compensated in any fashion whatever for that which the statute in question takes from them. Moreover, it is by no means apparent that the taking affected by R.C. 2305.10 ultimately inures to the benefit of the public at large, or that it in fact benefits anyone except the defendants shielded from potential liability. If viewed as a taking for the public good, R.C. 2305.10 violates Section 19, Article I because it fails to afford just compensation for the private property taken by its operation. If viewed as a taking which benefits one private citizen at the expense of another, it is manifestly beyond the scope of legislative authority.
Proposition of Law No. 4 The statute of repose codified in R.C. 2305.10 denies equal protection under the law certain plaintiffs contrary to the mandate of Section 2, Article I of the Ohio Constitution.
A. Section 2, Article I of the Ohio Constitution guarantees equal protect of the law
' see Ledex v. Heatbath Coro., (1984) 10 Ohio St. 3d 126, SYLLABUS.
19 Section 2, Article I of the Ohio Constitution provides, in pertinent part, "All
political power is inherent in the people. Government is instituted for their equal protection and benefit..." OH CONST. Section 2, Article I.
Equal protection under the law does not forbid classifications, but it does forbid the
government from "treating differently persons who are in all relevant aspects alike." Park
Corro. v. City of Brook Park, (2004) 102 Ohio St. 3d 166, 169 (quoting Nordlinger v. Hahn,
(1992) 505 U.S. 1, 10). However, where classifications are made there must be a
constitutionally valid justification for such classification. For equal protection purposes, a
statute will be found constitutional so long as it is rationally related to a legitimate
governrnent purpose. This Court has previously given that somewhat nebulous phrase a
more concrete definition noting that:
there is a point beyond which the State cannot go without violating the Equal Protection Clause. The State must proceed upon a rational basis and may not resort to a classification that is palpably arbitrary. The rule has been stated to be that the classification must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. If the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of the equal protection of the law. Banc One Dayton v. Limbach, (1990) 50 Ohio St. 3d 163, 170 (internal quotes and
citations omitted). Clearly, the law in Ohio is that a classification that is capricious and/or
arbitrary is not rational.
B. R.C. 2305.10 arbitrarily and capriciously differentiates between plaintiffs injured by a defective product ten years or more after it was sold to an end- user, and plaintiffs sustaining comparable injuries less than ten years after the sale to an end-user.
Turning to the statute of repose, it is clear that the General Assembly made an
arbitrary classification--i.e.; legislature arbitrarily decided to treat those who are injured by
20 a product that left the manufacturer's hands over ten years prior to the injury differently
from Ohioans who are injured by the very same product less than ten years after the product leaves the manufacturer's hands. In practical terms, if a product had left the manufacturer's hands on January 4, 1997, an Ohioan injured by that product on January 3,
2007 would have a cause of action but an Ohioan injured on January 5, 2007 would find the doors to the courthouse barred.
This Court has recently held that it uses the same level of scrutiny in its analysis of a statute pursuant to Section 2, Article I of the Ohio Constitution as the Supreme Court of the United States uses when it analyzes a statute pursuant to the Equal Protection Clause of the Fourteenth Amendment. Those levels of scrutiny provide that:
all statutes are subject to at least rational-basis review, which requires that a statutory classification be rationally related to a legitimate government purpose. When a discriminatory classification based on sex or illegitimacy is at issue, we employ heightened or intermediate scrutiny and require that the classification be substantially related to an important governmental objective. And when classifications affect a fundamental constitutional right, or when they are based on race or national origin, we will conduct a strict-scrutiny inquiry. This latter level of scrutiny demands that a discriminatory classification be narrowly tailored to servea compelling state interest. Thompson, at 266-267 (internal citations omitted).
According to the General Assembly's findings, the statute of repose passed in SB
80 and codified at R.C. 2305.10 is "rational" but simply because the General Assembly says the statute is rational does not make it rational. In fact, the fmdings of the General
Assembly demonstrate that the classification is not rational.
Petitioner has discussed the findings of the General Assembly at length above and will not repeat those arguments here except to note that incorrect facts and
21 misunderstandings of the law cannot be rational. Any statute purportedly based on
incorrect facts and misunderstandings of the law, like the one at bar, must be irrational.
C. Because R.C. 2305.10 is unable to withstand even rational basis analysis, it must be struck down as violative of the equal protection guarantees of Section 2, Article I of the Ohio Constitution.
As seen above, the reasons given for the statute of repose in the findings in SB 80
do not provide rational reasons for denying equal protection to all Ohioans. The reasons
given have either been shown to be incorrect or based on a misunderstanding of the law.
None of the reasons promulgated is truly rational. Therefore, although the statute of repose
should be subject to strict scnxtiny, even if the rational-basis test is applied the statute can
only be found to irrational and thus unconstitutional.
Proposition of Law No. 5 R.C. 2305.10, as applied herein, retroactively extinguishes a substantive rigbt in violation of Section 28, Article II of the Ohio Constitution.
A. Pursuantto Section 28, Article H of the Ohio Constitution, the legislature has no power to enact laws which retroactively impair or abolish substantive rights.
Section 28, Article II of the Ohio Constitution provides, in pertinent part, "The
general assembly shall have no power to pass retroactive laws ..." OH CONST. Section 28,
Article II. For over a century this Court has held that the "ban against retroactive legislation
is applicable solely to substantive, as opposed to remedial, laws." Gregory v. Flowers,
(1972) 32 Ohio St. 2d 48, 52-53. To illustrate and support that observation the Gregory
Court cited a line of decisions including Rairden v. Holden, (1864) 15 Ohio St. 207; Smith v. New York Central Rd. Co., (1930) 122 Ohio St. 45; State ex rel. Slaughter v. Industrial
Connnission, (1937) 132 Ohio St. 537; and State ex rel. Holdridge v. Industrial
Commission, (1967) 11 Ohio St. 2d 175. Most recently, this Court has held that "A
22 statutory enactment is repugnant to Section 28, Article II if it is expressly retroactive and is substantive, as opposed to remedial. State of Ohio v. LaSalle, (2002) 96 Ohio St. 3d 178,
181 (emphasis in original).
This Court has previously noted that "in general terms, substantive law is that which creates duties, rights, and obligations, while procedural or remedial law prescribes methods of enforcement of rights or obtaining redress." State ex rel. Holdridge v. Industrial
Commission of Ohio, (1967) 11 Ohio St. 2d 175, 178. This basic definition has been refined so that "a statute is substantive when it does any of the following: impairs or takes away vested rights; affects an accrued substantive right; imposes new or additional burdens, duties obligations or liabilities to a past transaction; creates a new right out of an act which gave no right and imposed no obligation when it occurred; gives rise to or takes away the right to sue or defend actions at law." Van Fossen v. Babcock & Wilcox Co., (1988) 36
Ohio St. 3d 100, 107 (citations omitted). Remedial laws, on the other hand relate to "rules of practice, courses of procedure and methods of review ..." Babcock, 36 Ohio St. 3d at
107-108.
For purposes of analyzing whether a statute is unconstitutionally retroactive, the
Court has set forth a two-step analysis.
Step one requires an initial determination of legislative intent. Intent is deteimined by construing, and then applying R C. 1.48. R C. 1. 48 provides `A statute is presumed to be prospective in its operation unless expressly made retrospective.' The Van Fossen court held that R C. 1. 48 establishes a threshold analysis that must be undertaken prior to any inquiry under Section 28, Article II of the Ohio Constitution. Inquiry into whether a statute may be constitutionally applied retrospectively continues only after an initial fmding that the General Assembly expressly intended that the statute be applied retrospectively. Thus, absent a clear pronouncement by the General Assembly that a statute is to be applied retrospectively, a statute may be applied prospectively only. LaSalle, 96 Ohio St. 3d at 181.
23 For purposes of the present action, this analysis may be readily applied. As to the threshold
issue of legislative intent, R.C. 2305.104 provides, in pertinent part, "Except as otherwise provided ... no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used as a component in the production, construction, creation, assembly or rebuilding of another product." R.C. 2305:10 (C)(1). This section of the statute sets forth the statute of repose for products liability. The statute then provides "This section shall be considered to be purely remedial in operation and shall be applied in a remedial manner in any civil action commenced on or after the effective date of this amendment, in which this
section is relevant, regardless of when the cause of action accrued and notwithstanding any other section of the Revised code or prior rule of law of this state, but shall not be construed to apply to any civil action pending prior to the effective date of this amendment" R.C.
2305.10 (F) (emphasis added).
By its terms, section (F) does not apply to any actions that had been filed prior to the effective date of the statute--April 7, 2005. However, by its terms, it has a retroactive
application to any cause of action that had accrued but in which suit had not been commenced on or before April 6, 2005. Because the statute of limitations for a product
liability suit is two years, R.C. 2305.10 (A), section (F) of the statute has the practical effect
° R.C. 2305.10 was amended by SB 17 passed by the 126`" General Assembly and a section was added pertaining to actions brought be victims of childhood sexual abuse, thus what was section (F) in the prior statate is section (G) in the current statute. All references in the text of this brief shall refer to the statute as it was numbered on the date of Petitioner's injury. The substance of the sections Petitioner claims are unconstitutional is the same in both versions of the statute. Copies of both versions of the statute are attached as appendices 10 (2005 version) and 11 (present version).
24 of being applicable retroactively to April 7, 2003. Therefore, by its own terms, the statute of repose is to be applied retrospectively and thus the threshold test in LaSalle is met.
B. This Court has consistently invalidated statutes which operate to abolish the right to seek legal redress for injuries sustained before such statutes became effective.
In the case at bar, the statute of repose, as applied, serves to extinguish an accrued right of action without affording the Petitioner a reasonable opportunity to have his claim heard in court. The Petitioner was injured on March 3, 2005. The statute of repose came into effect on April 7, 2005. For practical purposes, the Petitioner only had 34 days in which to file his cause of action. This Court has consistently held that a plaintiff must be
"afforded a reasonable time in which to enforce his right." Morninee, at 278. This Court has never held that a mere 34 days is a reasonable time in which to enforce a legal right.
A case directly on point with the matter at bar is Gregory v. Flowers, (1972) 32
Ohio St. 2d 48. In that case the appellant suffered a work-related injury to his neck and low back in January 1959. Gregory, 32 Ohio St. 2d at PRIOR HISTORY. He filed a claim only for the neck injuries and that claim was allowed. Id. By December 1967 the appellant's back injury required further treatment and eventually surgery. Id. He filed an application to modify his workers' compensation claim in June 1968. Id. The application was denied at the administrative level on the grounds that the application was not filed within two years of the date of injury as required by R.C. 4123.84 (a statute of limitation) which became effective on December 11, 1967, but the court of appeals reversed and held that R.C. 4123.84 could not be applied retroactively. Id. The Supreme Court of Ohio heard the subsequent appeal.
25 The Gregory Court held, "When the retroactive application of a statute of limitations operates to destroy an accrued substantive right, such application conflicts with
Section 28, Article II of the Ohio Constitution." Id. at SYLLABUS ¶ 3. Thus, even though a statute of limitation is procedural in nature, it cannot be applied retroactively to destroy an accrued substantive right.
The Gregory Court reasoned that the "statutory right to file an application for modification of an award, which right arose by operation of the workmen's compensation laws of this state, is a substantive right which accrues at the time of the claimant's injury; and when the retroactive application of a statute of limitation operates to destroy that right, such application conflicts with Section 28, Article II of the Ohio Constitution." M. at 58.
The Court concluded by fmding the section of R.C. 4123.84 which provided for its retroactive application to be unconstitutional and, therefore, void. Id. at 58-59.
Similarly in Hardy, supra, this Court held that a cause of action for medical malpractice accrues when "the patient discovers or in the exercise of reasonable care and diligence should have discovered the resulting injury. Hardy, at 46, n3. The statute of repose at issue in Hardy was stricken because, as applied it barred the claims of medical malpractice plaintiffs who did not know or could not reasonably have known of their injuries. Hardy, at SYLLABUS.
C. R.C. 2305.10 as respondents Kard and Racine seek its application herein operates to abolish Petitioner's substantive right to seek damages for injuries sustained prior to the effective date of such statute. According, R.C. 2305.10 as here sought to be applied is unconstitutional pursuant to Section 28, Article II of the Ohio Constitution.
In the matter at bar, the statute of repose is not procedural--it is substantive. Over a hundred years ago, this Court considered the question of the right to be heard. In that case,
26 the Court noted the fundamental distinction between those who are denied an opportunity to be heard as opposed to "a party [who] had an opportunity to be heard and neglected to avail himself of it..." Southward v. Jamison, (1902) 66 Ohio St. 290, 313. A statute of limitation does not deny a meaningful opportunity to be heard--it simply prescribes the manner in which the right to be heard must be enforced. A party who has a case dismissed based on statute of limitations clearly had an opportunity to be heard but has failed to avail himself of that right. A statute of repose, on the other hand, extinguishes the opportunity to be heard in a meaningful way. Because it directly affects a substantive right, as opposed to prescribing a manner in which a right must be enforced, a statute of repose cannot be found to be merely procedural.
Finally, section (F) of the statute provides that it is to be applied retroactively. Such retroactive application destroys an accrued substantive right and--like the retroactive application of the statute of limitations discussed in Gregory--is in conflict with Section 28,
Article II of the Ohio Constitution.
Proposition of Law No. 6 SB 80 violates Section 15(D), Article II of the Ohio Constitution which mandates that no bill shall have more than one subject.
A. Section 15(D), Article II of the Ohio Constitution directs that no bill shall have more than one subject.
No bill shall contain more than one subject, which shall be clearly expressed in its title. OH CONST. Section 1, Article II (D).
"The one-subject provision was incorporated into the Constitution of 1851 as an integral part of the efforts of the Second Constitutional Convention to rein in the inordinate powers that were previously lodged in the General Assembly and to ultimately achieve a
27 proper functional balance among the three branches of our state government " In re
Nowak, (2004) 104 Ohio St. 3d 466, 472.
"Ohio is one of among forty-one states whose Constitution contains a one- subject provision. The primary and universally recognized purpose of such provisions is to prevent logrolling--the practice of several minorities combining their several proposals as different provisions of a single bill and thus consolidating their votes so that a majority is obtained for the omnibus bill where perhaps no single proposal of each minority could have obtained majority separately." State ex rel. Dix v. Celeste, (1984) 11 Ohio St. 3d 141, 142-143
(internal citations and quotations omitted). The cure for logrolling was the adoption of
Section 15(D), Article II. As this Court has noted, "By limiting each bill to a single subject, the one-subject rule strikes at the heart of logrolling by essentially vitiating its product." Nowak, 104 Ohio St. 3d at 472.
Although it is clear that the Constitutional Convention desired to end the practice of logrolling, for years the decisions of the Ohio Supreme Court held that the one-subject rule was merely advisory. That changed in 1984 with the decision in Dix. The Dix Court held that a "manifestly gross and fraudulent violation of the one-subject rule provision contained in Section 15(D), Article II of the Ohio Constitution will cause an enactment to be invalidated. Since the one-subject provision is capable of invalidating an enactment, it cannot be considered merely directory in nature." Dix, 11 Ohio St. 3d at SYLLABUS ¶ 1.
Although this Court recognized its authority to invalidate an entire enactment, it refrained from doing so until its decision in State ex rel. Ohio Academy of Trial Lawyers v.
Sheward, (1999) 86 Ohio St. 3d 451 wherein HB 350 was found to be in violation of the one-subject rule and was invalidated in toto.
28 B. SB 80 contains more than one subject.
1. SB 80 contains subjects completely outside the realm of tort reform.
SB 80 amends forty-two separate sections of the Ohio Revised Code, adds ten new sections and repeals six others. Moreover, aside from the topics encompassed by the term
"tort reform," SB 80 contains subjects which are completely unrelated to any aspect of tort law. For example SB 80 proscribes that the state shall issue "volunteer certificates" for retired dentists (Final Analysis, pp. 10, 42); it specifies the types of nurses who may refer to themselves as "advanced practical nurses" and use the initials A.P.N. (Final Analysis, pp. 10, 43); it creates the "Ohio Subrogation Rights Commission" (Final Analysis, pp. 52-
53); and it urges this Court to adopt what it calls a "Legal Consumer Bill of Rights." (Final
Analysis, pp. 61-63.)
Clearly the portion of the bill relating to retired dentists and advanced practical nurses has no connection to tort law. It is also well understood that subrogation law comes from insurance law which is a type of contract law. The Legal Consumer Bill of Rights does not apply to tort law but rather to the administration of the bar. Thus, even if "tort reform" were one subject, SB 80 would still be in violation of Section 15(D), Article II.
2. This Court has previously held that tort reform is not a single subject.
Even if SB 80 did not contain subjects other than tort reform, it would still violate
Section 15, Article II because this Court has previously held that "tort reform" is not a single subject with a plurality of topics but rather a heading encompassing multiple subjects. Previously the legislature passed an omnibus bill under the general rubric of "tort reform law"--HB 350 which was passed by the General Assembly in 1996. That bill was
29 invalidated in toto in State ex rel. Ohio Academy of Trial Lawyers v. Sheward, (1999) 86
Ohio St. 3d 451.
In Sheward, the Court was asked inter alia to determine if HB 350 violated Article
II, Section 15, the one-subject rule, of the Ohio Constitution. In finding that SB 350 did violate the one-subject rule the Sheward Court made several fmdings and holdings that are relevant to the present matter.
First the Sheward Court noted that while the cap on noneconomic damages and the cap on punitive damages might both come under the general subject "damage cap provisions," the sections relating to employment discrimination claims, class actions arising from the sale of securities and qualified immunity for athletic coaches clearly constituted other subjects. Sheward, Ohio St. 3d at 497-498. The respondents in Sheward had argued, much like the respondents in the present matter, that all of the topics fell under the general subject of "tort and other civil actions." The Sheward Court concluded that
such a subject was overly broad and that if that argument was accepted "the General
Assembly could conceivably revamp all Ohio law in two strokes of the legislative pen-- writing once on civil law and again on criminal law. The though of it is staggering." Id at
499.
The second key holding in Sheward was that HB 350 was "designed to comprehensively reform the civil justice system, and any attempt on our part to carve out a primary subject by identifying and assembling what we believe to be key or core provisions of the bill would constitute a legislative exercise wholly beyond the province of this court." Id. at 500. As a result, there was no atteinpt to sever the bill. SB 350 was invalidated in toto.
30 SB 80 is remarkably similar to HB 350. Various portions of the bill address a products liability statute of repose; a statute of repose for improvements to real property; the abrogation of the collateral source rule; caps on punitive damages; immunity from lawsuits based on weight gain; limits non-economic damages; definition of "frivolous conduct;" limitations on asbestos-related liabilities for successor companies; and immunity for owners of land- just to name a few.
In short, the definition of "frivolous conduct" and a statute of repose are just not the same subject. Immunities for landowners and statutes of repose for manufacturers are not the same subject. This Court has already made that determination in Sheward.
This is not to say that the General Assembly can never pass comprehensive legislation. For example, this Court has ruled that "workers compensation" is one subject.
State ex rel. Ohio AFL-CIO v. Voinovich, (1994) 69 Ohio St. 3d 225, 228., Another example is found in Beagle wherein this Court held that comprehensive legislation which addressed uninsured/underinsured motorists encompassed one subject with a plurality of topics. Beagle v. Walden, ( 1997) 78 Ohio St. 3d 59, 62. The difference between comprehensive legislation on the subject of workers compensation and uninsured/underinsured motorists versus tort reform is easily seen. The first two represent discreet subjects with a possible plurality of topics. Tort law, by its very nature encompasses a variety of subjects each with a multitude of topics.
C. Because SB 80 contains more than one subject, it must be invalidated in toto as violative of Section 15(D), Article H of the Ohio Constitution.
1. The practice of "severing" an enactment has been done erratically leaving the law in a state of confusion.
31 In the past this Court severed portions of enactments found to be in violation of
Section 15, Article II in State ex rel. Hinkle v. Franklin County Board of Electors, (1991)
62 Ohio St. 3d 145, 149; in State ex rel. Ohio AFL-CIO v. Voinovich, (1994) 69 Ohio St.
3d 225, 230 and in In re Nowak, 104 Ohio St. 3d 466, 481-482. However, it is also true that this court invalidated HB 350 in toto on the grounds that it violated the one-subject rule. Sheward, at 499. Moreover, although the Nowak Court severed portions of the enactment found to be in violation of the one-subject rale, that Court also specifically held that a "manifestly gross and fraudulent violation of the one-subject provision contained in
Section 15(D), Article II of tlse Ohio Constitution will cause an enactment to be invalidated." Nowak, 104 Ohio St. 3d at SYLLABUS ¶ I (italics in original, bolding added). Thus, we see that there is disunity in the decisions of this Court regarding the practice of "severing" even in the same case. The result is confusion in the law.
The solution to this disunity is to use the test set forth in Westfield Insurance Co. v.
Galatis, (2003) 100 Ohio St. 3d 216. In that case this Court held, "A prior decision of the
Supreme Court may be overruled where (1) the decision was wrongly decided at the time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it." Westfield Insurance, 100 Ohio St. 3d at
SYLLABUS, ¶ 1. This test was set forth for the purpose of determining whether a previous decision should be overtumed. In the case of the practice of severing an enactment found to be in violation of Section 15, Article II, there is precedent for both severing and for in toto invalidation. Thus, using the Westfield Insurance test will be useful for determining
32 which practice is better for Ohio and therefore lead to predictability and continuity in the law upon which the General Assembly and the citizens of Ohio can rely.
2. The practice of severing portions of a multi-subject bill is unworkable because it offends Section 15(D), Article II of the Ohio Constitution.
It has long been understood that it is the role of the courts to "say what the law is."
Marbury v. Madison, ( 1803) 5 U.S. 137, 177. Furthermore, "if a law be in opposition to the constitution; if the law and constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine wluch of these conflicting rules governs the case. This is of the very essence of judicial duty."
Marbury, 5 U.S. at 178. Finally, "[i]f then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution and not such ordinary act, inust govern the case to which they both apply." Id.
This same basic sentiment was expressed just over one hundred years later by this
Court when it held "Manifestly, when the constitution of the state declares and defines certain public policies, such public policies must be paramount, though a score of statutes conflict and a multitude of judicial decisions be to the contrary." Kintz v. Harriger, (1919)
99 Ohio St. 240, 247. The Kintz Court also noted "No general assembly is above the plain, potential provisions of the constitution, and no court, however sacred or powerful, has the right to declare any public policy that clearly contravenes or nullifies the rights declared in the constitution." Kintz, 99 Ohio St, at 247.
Finally, as noted above, this Court has also held that a "manifestly gross and fraudulent violation of the one-subject provision contained in Section 15(D), Article II of
33 the Ohio Constitution will cause an enactment to be invalidated." Nowak, at SYLLABUS ¶
1 (emphasis in original).
The provisions in Section 15, Article II are clear. No bill shall contain more than one subject. Marbury and Kintz teach that it is the role of the judiciary to serve as a check on the legislature as a co-equal partner in government. Nowak clearly provides that an enactment that violates Section 15, Article II shall be invalidated.
By its express terms, the one-subject rule does not allow for "severing." Any bill with more than one subject is unconstitutional and all component parts (the various subjects) are unconstitutional. This is because the improper melding of two unrelated subjects into one bill poisons the entire bill. The drafters of the 1851 constitution saw the perils of what is called "logrolling"--i.e. the marriage of two unrelated subjects into one bill. In response to this perceived peril the drafters of the 1851 Ohio Constitution gave to the judiciary the authority to invalidate the entire enactment as opposed to only a portion thereof. The Court has been reluctant to use the power in the past. However, invalidation of an entire enactment that is unconstitutional pursuant to Section 15, Article II is what the constitution requires. Otherwise, the Court is merely preserving a portion of a tainted bill-- rather like trying to discard only the foul parts of a rotten egg. The whole of the bill is offensive to the constitution and thus the whole must be invalidated. The practice of severing where the one-subject rule is violated is incorrect and must be abandoned.
3. The practice of severing portions of a multi-subject bill which have been found to violate the one-subject rule is illogical and defies practical workability.
Severing is illogical where the one-subject rule applies. As was noted above, the one-subject rule was borne of the perceived necessity to impose a meaningful check on the
34 legislative branch which, under the constitution of 1802, had grown to be too powerful.
The constitution of 1851 had, as one of its primary objectives, the goal of limiting
legislative authority and restoring an appropriate balance among the branches of
government. The one-subject rule was one of the constitutional provisions adopted in furtherance of that goal.
The plain language of Section 15(D), Article II offers a bright-line test. A bill which contains more than one-subject is unconstitutional and will be struck down. The practice of severing, on the other hand, is unworkable. SB 80 is clearly the product of
logrolling. If the legislature believed that SB 80 would be invalidated in toto it would never have tried to pass it because it is clearly only a slightly modified version of HB 350 which this Court found unconstitutional less than ten years ago. However, would appear that the legislature has decided that it is at least as likely as not that this Court will sever portions of SB 80 and thus allow some of the "logs" to roll through. Thus, the unworkability of the practice of severing is that it actually encourages logrolling and rewards violations of the constitution. Such a practice can only lead to futther litigation
and fiirther strain on judicial resources.
Furthermore, where there are multiple subjects in an enactment, the practice of
severing forces the Court to chose which portion of a bill will remain in force and which will be invalidated. This requires the Court to act as a "super legislature" and engage in the sort of decision-making that is properly left to the legislature. By placing the Court in the position of detennining which of multiple subjects the legislature had primarily in mind, the Court is ultimately forced to make what is in essence a legislative decision. This in turn leads to a blurring of the line separating legislative from judicial authority. The cure for
35 this is the bright-line rule found in of Section 15(D), Article II that an enactment with more than one subject shall be invalidated in toto. Such a holding comports with the Ohio
Constitution, logic, public policy and this Court's holdings in Nowak and Sheward.
4. Abandoning the practice of severing portions of a multi-subject bill would not create undue hardship.
There would be no undue hardship for those who have relied on severing because any such reliance has been misplaced. Those who would have relied upon this Court to save portion of an enactment containing more than one subject misunderstand Section 15,
Article II of the Ohio Constitution. That section is designed to prevent the passage of the sort of omnibus bills represented by both HB 350 and SB 80. Common sense would dictate that relying on the Court to preserve an enactment that is contrary to the Ohio Constitution is misguided. The legislature must be given proper deference and its enactments must be presumed to be constitutional. However, where an enactment is not constitutional, the judiciary owes a duty to the citizens of Ohio to act as a check on the General Assembly and to invalidate that enactment. That is what our constitution demands.
The cure for logrolling is over one hundred fifty years old. The cure is found in
Section 15, Article II. SB 80 is a product of logrolling. The constitution, sound public policy and this Court's holding in Sheward require that it be invalidated in toto.
Proposition of Law No. 7 The Workers' Compensation subrogation statutes violate Section 19, Article I of the Ohio Constitution by improperly taking private property where injured workers are compelled to disgorge money obtained as a result of settling a third-party tort claim based upon the statute's presumption of double recovery.
Private property shall be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation
36 shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefore shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner. OH CONST. Section 19, Article I.
Holeton and Modzelewski found the former subrogation statutes were unconstitutional under Section 19, Article I of the Ohio Constitution because -they permitted a subrogee to claim amounts for estimated future panyments without provision for return to the claimant of amounts iu excess of actual compensation expenditures and they permitted a subrogee to claim proceeds of a tort recovery which were in no sense duplicative of workers' compensation. As this discussion will show, the current statute, while apparently attempting to remedy the constitutional deficiencies of its predecessors, is still afflicted by the same infirmities.
A. The subrogation statute allows a statutory subrogee to keep money not expended pursuant to future expenditures.
"It is axiomatic that the federal and Ohio constitutions forbid the state from taking private property for the sole benefit of a private individual." City ofNonvood, 110 Ohio St.
3d at 365. Yet the workers' compensation subrogation statute does just that--by taking money for future benefits without there being any mechanism for a party or his heirs to recoup said money and by taking money from an injured worker in the absence of a double recovery.
The current subrogation statute allows the Bureau or a self-insured employer to compel disgorgement of a portion of a tort recovery based on an estimate of future payments of compensation, costs and benefits. However, the statute provides no method by which funds in excess of actual future expenditures may be reclaimed by the injured
37 worker. That omission creates the conditions in which an unconstitutional taking will
occur.
As noted in Holeton, where a widow remarries shortly after the death of a claimant,
all of the estimated future benefits escheat to the state. Holeton, at 123. Another situation is one in which a claimant is severely injured and a large portion of his recovery is taken for estimated fature payments of compensation, costs and benefits. That injured worker subsequently dies shortly after a portion of his recovery is taken for estimated fature payments,: The statute provides no mechanism for the heirs to recoup the remaining money from the statutory subrogee. As the statute reads, it appears that any such money could be kept by the statutory subrogee. Thus, if the statutory subrogee is the Bureau, the money would escheat to the state. If the statutory subrogee were a self-insured employer, the money would stay in the employer's hands in violation of the mandate of this Court in City of Nonvood.
In the instant matter, the State and the Respondents will argue that Petitioner has the right, pursuant to the statute to open an interest bearing trust. However, in practical terms that is simply not a realistic option.
A letter provided by Bennet M. Miller, Assistant Vice-President and Trust Officer for Fifth Third Bank, sets forth the fee schedule for a trust account. (attached as Appendix
16). The letter provides that there is 0.83% fee on the first $1,000,000.00 (million dollars) with a minimum fee of $5,000.00 annually for any trust where Fifth Third is the trustee.
Moreover, that figure does not include fees for tax preparation, and distribution--two services that would be necessary should Petitioner opt to set up a trust to administer the
38 funds claimed by the statutory subrogee for estimated future payments of compensation, costs and benefits.
The bottom line is that unless the Petitioner is able take from his recovery against the third-party tortfeasor an amount greater than $580,000.00, his minimum fees will begin to deplete the principle of the trust--a result that is neither good for the statutory subrogee nor the Petitioner. Thus, the argument that the Petitioner could set up a trust is illusory.
The injured worker will be compelled to disgorge his tort recovery to the statutory subrogee.
Finally, it is important to remember that whether:
expressed in terms of the right to private property, remedy, or due process, the claimant-plaintiff has a constitutionally protected interest in his or her tort recovery to the extent that it does not duplicate the employer's or bureau's compensation outlay. Thus, if R.C. 4123.931 operates to take more of the claimant's tort recovery than is duplicative of the statutory subrogee's workers' compensation expenditures, then it is at once unreasonable, oppressive upon the claimant, partial and unrelated to its own purpose. Holeton, at 122.
Under the current statute, the statutory subrogee may take property that in no way reflects a double recovery and is under no obligation to ever return it. That is violative of Section
19, Article I of the Ohio Constitution.
B. The presumption of double recovery operates as a taking
In order to fully understand the inherent constitutional defects in the current workers' compensation subrogation statute5, it is important to see, in practical terms, how the statute actually works. An example, based on a real case, will be used to illustrate the
5 The workers' compensation subrogation statute has been codified at R.C. 4123.93 and R.C. 4123.931. Both sections of the code must be read together in order to understand the current statutory scheme. For the sake of convenience, however, Petitioner shall simply refer to both sections as the "subrogation statute."
39 statutory formula found in R.C. 4123.931(B) which is used to determine the claimant's share of a recovery and the statutory subrogee's portion of the recovery.
The formula for determining the amount the claimant shall receive (in both cases that settle and cases that proceed to trial) provides "the claimant shall receive an amount equal to the uncompensated damages divided by the sum of the subrogation inteiest plus the uncompensated damages, multiplied by the net amount recovered..." R.C. 4123.
931(B). In mathematical terms the formula would be as follows:
u X= s+u
In this equation "x" equals the claimant's amount, "u" equals the uncompensated damages,
"s" equals the subrogated interest and "n" equals the net recovery. The statutory subrogee's interest ("y" for purposes of the following equation) is the "amount equal to the subrogation interest divided by the sum of the subrogation interest plus the uncompensated damages, multiplied by the net amount recovered ..." R.C. 4123. 931(B). In mathematical terms, that formula would be as follows:
s y= s+u x n.
Let us assume for this hypothetical that we have a worker whose gross annual earning are $62,400.00 such that the worker's gross weekly pay is $1,200.00 Let us now assume that this worker's job requires that he drive a company car and that the company does not carry UM/UIM coverage on the. company car. Our hypothetical worker is involved in an accident where a third party tortfeasor is at fault and, as a result of his injuries, is off work for 24 weeks. He incurs medical bills in the amount of $30,000.00.
During the time he is off work, the worker receives the current maximum allowed
40 compensation of $730.00. Thus his total lost wages are $28,800.00 but he receives only
$17,520.00 in compensation benefits leaving a shortfall of $11,280.00. Next, let us assume
that this case is worth between $75,000.00 and $90,000.00 such that, for the sake of
simplicity we postulate $30,000.00 in non-economic damages giving this particular case a
settlement value of $88,800.00. Let us also assume that the tortfeasor only carries minimum coverage--i.e. $25,000.00 in personal injury with a limit of $12,500.00 per person. Finally, let us assume that the fees and costs for this action are $3,500.001eaving a net recovery of $9.000.00
Using the figures cited above, the statutory subrogee'sinterest is $47,520.00. The uncompensated damages are $41,280.00. Now, using these figures, the formula promulgated in R.C. 4123.931 provides:
$41,280.00 claimant = $4,183.78 = $88,800.00 x $9,000.00;
$47,520.00 subrogee = $4,816.22 = $88,800.00 x $9,000.00.
The figures above clearly illustrate that the statutory presumption of double recovery inherent in the statute is incorrect. In the example given, even if the claimant is
able to keep his entire net recovery, he is not fully compensated for his injuries--in other words he does not even have a full single recovery as opposed to a double recovery. The hypothetical claimant has suffered a loss of income of $11,280.00. If the claimant is allowed to retain the entire award, he still suffers a loss of $2,280.00 in wages income. His pain and suffering go completely uncompensated. If the statutory formula is used, his
shortfall for lost wages rises to $7096.22.
41 The de facto mandatory disgorgement for estimated future benefits and compensation coupled with the up front taking affected by the statutory formula are offensive to the guarantees of Section 19, Article II of the Ohio Constitution.
Proposition of Law No. 8 The Workers' Compensation subrogation statutes violate Section 16, Article I of the Ohio Constitution by denying injured workers due process of law as a result of failing to provide a proceeding by which those injured workers may overcome the statutory presumption of double recovery.
A. The first two workers' compensation subrogation statutes violated Section 16, Article I by failing to give injured workers a forum in which they could show• no double recovery had occurred.
The first workers' compensation subrogation statute was found to deny dueprocess because "it precludes claimants who are parties to actions against third-party tortfeasors from showing that their tort recovery or portions thereof do not duplicate their workers' compensation recovery and, therefore, do not represent a double recovery." Modzelewski,
102 Ohio St. 3d at 196. Regarding the second workers' compensation subrogation statute, the Holeton Court held
the state has a legitimate interest in preventing double recoveries. Thus, it is constitutionally permissible for the state to prevent a tort victim from recovering twice for the same item of loss or type of damage, once from the collateral source and again from the tortfeasor. However, we have also recognized that these kinds of statutes are not rationally related to their purpose where they operate to reduce a plaintiff s tort recovery irrespective of whether a double recovery has actually occurred. Thus, we have consistently and repeatedly held that due process permits deductions for collateral benefits only to the extent that the loss for which the collateral benefits compensates is actually included in the award.
There is no valid justification for dispensing with these principles in detennining the constitutionality of R.C. 4123.931. Like the collateral- benefits-offset statutes, the subrogation statute is aimed at preventing the tort victim from keeping a double recovery, the only conceptual difference being that the intended beneficiary is the statutory subrogee (i. e., the collateral payor) rather than the tortfeasor. Thus, R.C. 4123.931 must also satisfy the constitutional requirement that deductible or, in this case,
42 subrogable or recoupable items be matched to those losses or types of damages that the claimant actually recovered from the tortfeasor. Holeton. at 122 (internal citations omitted).
The important concept in both of those decisions is that due process is denied where a party is denied opportunity to demonstrate that there has been no double recovery.
B. The current workers' compensation subrogation statute suffers from the same constitutional infirmities as the first two.
Under the current statute, the injured worker is precluded from asking a jury to determine if there has been adouble recovery. The special interrogatories described in
R.C. 4123.931(D)(2) do not allow a jury to determine if there has been a double recovery.
The only thing the jury is allowed to do is to determine the portion of damages which represent economic loss and which portion represents non-econoniic loss. Non-economic damages, however, are not excluded from the statutory formula-=on1y punitive damages are exempt. R.C. 4123.93(E). Once again the injured worker has no way to dispute the amount claimed as double recovery by the statutory subrogee and, therefore, is denied a meaningful opportmuty to be heard. For all its complicated formula and the decision to split the statute into two parts this version of the subrogation statute suffers from the same defects as the first two: there is a presumption of double recovery and no opportunity for an injured worker to dispute the presumption--thus making the presumption de facto irrebuttable. Such a result cannot be rational. It is worth repeating this Court's holding in
Holeton:
the claimant-plaintiff has a constitutionally protected interest in his or her tort recovery to the extent that it does not duplicate the employer's or bureau's compensation outlay. Thus, if R.C. 4123.931 operates to take more of the claimant's tort recovery than is duplicative of the statutory subrogee's workers' compensation expenditures, then it is at once unreasonable, oppressive upon the claimant, partial and unrelated to its own purpose.
43 Holeton, at 122.
As seen in the hypothetical above, the formula in the current statute operates to take the claimant's tort recovery irrespective of whether or not there has been a double
recovery. The statute includes a presumption of double recovery which becomes, in
essence, irrebuttable because the injured worker is denied a meaningful opportunity to be
heard on the issue of double recovery. In short, the same due process defects that caused this Court to find the two previous workers' compensation statutes are present in this
statute.
Proposition of Law No. 9 The Workers' Compensation subrogation statutes violate Section 2, Article I of the Ohio Constitution in that the class of workers who settle their claims is treated substantially differently from those whose claims are tried in court.
In Ohio, a "statutory classification which involves neither a suspect class nor a
fundamental right does not violate the Equal Protection Clause of the Ohio [constitution]
if it bears a rational relationship to a legitimate government interest." Menefee v. Oueen
Citv Metro, (1990) 49 Ohio St. 3d 27, 29. Thus, the Court must first determine if a
fundamental right or a suspect class is implicated so as to use the correct standard when
performing its equal protection analysis.
"Injured employees are not a suspect class." Holeton, 92 Ohio St. 3d at 138
(Moyer, C.J. dissenting). However, this Court has also held that legislation, "must apply
alike to all persons within a class, and reasonable grounds must exist for making a
distinction between those within and those without a designated class." State of Ohio v.
ckle ,(1968) 16 Ohio St. 2d 128, SYLLABUS, ¶ 3. In this case, the class is those persons who have been injured in course of and arising out of their employment by a third- party tortfeasor. The current statute draws a distinction between those persons in that class
-44 who settle their claim and those who proceed to trial. The distinction is irrational and denies equal protection of the law to those injured workers whose cases go to trial.
The current formula denies the Petitioner the opportunity to be meaningfully heard on the issue of double recovery. The result of this is that either the State or a self-insured employer will be unjustly enriched as a result of being allowed to take a portion of the
Petitioner's non-economic damages--damages which clearly do not represent a double recovery.
Under the current statutory scheme, an injured worker who settles his claim has an opportunity to challenge the determination of the amount owed to the statutory subrogee by asking for a designee appointed by the administrator of the Bureau of Workers'
Compensation to resolve the dispute. An injured worker also has the option of seeking any other "binding or non-binding alternative dispute resolution process." R.C. 4123.931(B).
An injured worker whose case by proceeds to trial, however, is not given that same opporhniity. There are no provisions in subsection (D) which allow an injured worker to challenge the claim made by a statutory subrogee on his tort recovery. Although there are provisions in subsection (D) allowing for jury interrogatories to determine economic versus non-economic damages, it is important to remember that non-economic damages are not excluded from the net amount recovered. Thus, the jury interrogatories are meaningless and an injured worker whose tort claim goes to trial is afforded no opporturiity to dispute the statutory subrogees' claim upon his tort recovery.
As seen above, under the current statutory scheme, Petitioner will have no opportunity to demonstrate that there has been no double recovery in his case. Petitioner's case is currently before in the District Court for the Northern District of Ohio awaiting the
45 decision of this Court. If the current subrogation statute is allowed to stand, Petitioner, despite the fact he will be allowed to ask the jury to differentiate between economic and non-economic damages, will not be afforded an opportunity to demonstrate he has not had a double recovery because his non-economic damage are not excluded from the statutory formula. R.C. 4123.93(E).
This Court has held that "such disparate treatment of claimants who settle their tort claims is irrational and arbitrary because ... there are situations where claimants' tort recovery is necessarily limited to amounts that if retained along with workers' compensation cannot possibly result in a double recovery." Holeton, at 132. The sanie situation exists here for claimants who try their cases. There will be cases where even a jury verdict will not result in a double recovery. The complete absence of any mechanism for a claimant who collects on a trial court judgment to rebut the presumption of double recovery is as irrational as it was for those who settled their claims under the previous subrogation statute.
Menefee teaches that a statute which is rationally related to a legitimate govemment purpose does not offend Section 2, Article I of the Ohio Constitution. Holeton teaches that disparate treatment of injured workers who try their third-party tort claims versus those who settle their claims is arbitrary and irrational. As such, the current workers compensation subrogation statute must be found to be unconstitutional.
CONCLUSION
As the discussion above has demonstrated, this Court has consistently held that the due course of law, open courts and right to remedy provisions of Section 16, Article I of the Ohio Constitution require that all persons injured in person, property or reputation have
46 access to the courts to seek redress for the harm done them. The explicit intent, and the precise effect of R.C. 2305.10(C) and (F) is to close the courthouse doors to those harmed by defective products after the expiration of an arbitrary period of time after such products have left the hands of the manufacturer. This cannot be reconciled with the fundamental guarantees of Section 16, Article I of the Ohio Constitution.
It is likewise clear that the statute of repose here at issue operates to deny equal protection of the laws in violation of Section 2, Article I and results in an improper taking of an injured party's property interest in his product liability claim in violation of Section
19, Article I of the Ohio Constitution. For these reasons, R.C. 2305.10(C) and (F) must be struck down as unconstitutional.
Senate Bill 80, as discussed above, plainly encompasses more than one subject.
The plain terms of Section 15(D), Article II of the Ohio Constitution direct that a bill have only one subject. When the legislature enacts a single bill addressing multiple subjects in violation of the plain terms of the constitution, it is proper for this Court to invalidate the entire enactment. Accordingly, pursuant to Section 15(D), Article II of the Ohio
Constitution, this Court should find SB 80 unconstitutional in toto.
Finally, this Court has squarely held that workers' compensation subrogation statutes which permit a subrogee to claim portions of a claimant's tort recovery which do not, in fact, represent a double recovery, or which deny a claimant the opportunity to overcome the implicit statutory presumption of double recovery, offend Sections 2, 16 and
19 of Article I. While it is apparent that the current subrogation statute represents an attempt to remedy the constitutional deficiencies of its predecessors, the foregoing discussion clearly reveals that that attempt has ended in failure. Because the constitutional
47 infirmities previously identified in Holeton and Modzelewski are still present, the current statute must be struck down.
Respectfully submitted
GALLON, TAKAC.S, BOISSONEAULT & SCHAFFER CO. L.P.A.
- ^ y ^L Theodore A. Bowman Attorneys for Petitioner
Russell Ge n y Attorneys for Petitioner
48 CERTIFICATION
This is to certify that a copy of the foregoing Merit Brief of Petitioner, Douglas
Groch was sent this 26"' day of February, 2007, via ordinary U.S. mail, postage pre-paid, to:
Kimberly A. Conklin, Esq. KERGER & ASSOCIATES 33 S. Michigan Street, Suite 100 Toledo, OH 43604 Counsel for Respondent, General Motors Corporation
David C. Vogel (MO # 45937) Patrick Fanning (MO # 47615) LATHROP & GAGE L.C. 2345 Grand Boulevard, Suite 2800 Kansas City, Missouri 64108-2612 of Counsel for Respondent, General Motors Corporation
Robert H. Eddy, Esq. and Anna S. Fister, Esq. GALLAGHER SHARP 420 Madison Avenue, Suite 1250 Toledo, OH 43604 Coiunsel for Respondents, Kard Corporation and Racine Federated, Inc. National/Kard Division
Elise Porter, Esq. # 0055548 Assistant Attomey General Workers' Compensation Section 150 E. Gay Street, 22°d Floor Columbus, OH 43215 Counsel for Respondent, Ohio Attorney General, Jim Petro
Theodore A. Bowman
49 EXHIBIT 1 Case 3:06-cv-01604-JGC Document 33 FiFed 10/11/2006 Page 1 of 5
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION
DOUGLAS GROCH, et al., . Case No. 3:06-CV-1604
Plaintiffs,
vs. . Judge JAMES G. CARR
GENERAL MOTORS CORPORATION, et al.,
Defendants.
ORDER
There are issues of Ohio law that may be determinative of the present case and for
which there is no controlling precedent in the decisions of the Supreme Court of Ohio.
Therefore, this Court finds it appropriate to certify questions of Ohio law to the Supreme
Court of Ohio.
A. NAME OF THE CASE AND NAMES OF ALL PARTIES
The name of this case is Douglas Groch, et al. v. General Motors Corporation, et
al. case number 3:06-CV-1604. The parties in this case are: Plaintiffs Douglas Groch
and Chloe Groch versus Defendants General Motors Corporation, Kard Corporation and
7 Case 3:06-cv-01604-JGC Document 33 Filed 10/11/2006 Page 2 of 5
Racine Federated, Inc. The Attomey General of Ohio is a party for purposes of defending the constitutionality of the Ohio statutes at issue.
B. BRIEF STATEMENT OF FACTS
The Amended Complaint alleges the following: Plaintiff Douglas Groch
("Groch") was injured on March 3, 2005 when the trim press he was operating came down on his right ann and wrist. At the time of his injury Plaintiff Douglas Groch was acting in the course and scope of his employment with Defendant General Motors
Corporation. The trim press that he was using was manufactured by Defendants Kard
Corporation and Racine Federated, Inc.
Groch bought an action in the Court of Common Pleas, Lucas County, Ohio seeking damages from Defendant General Motors Corporation ("GM") based on a theory of employer intentional tort and from Defendants Kard Corporation and Racine
Federated, Inc. (respectively, "Kard" and "Racine") based on a theory of product liability.
Plaintiff Chloe Groch ("Chloe") sought damages for loss of consortium.
The action was removed to federal court by GM. Federal jurisdiction is based on
28 U.S.C. 1332 because there is diversity between the Plaintiffs and the Defendants, and the amount in controversy exceeds $75,000.00.
GM has asserted a subrogation interest in Groch's recovery for its payment to him of workers' compensation benefits. Groch asserts that the Ohio statutes granting GM subrogation interests-R.C. 4123.93 and R.C. 4123.931-are unconstitutional. To fully adjudicate this matter and determine the rights and liabilities of each party, this Court needs a determination by the Ohio Supreme Court regarding the constitutionality of the statutes under the Ohio Constitution. The Supreme Court of Ohio has not yet had
8 Case 3:06-cv-01604-JGC Document 33 Filed 10/11/2006 Page 3 of 5
opportunity to issue a decision on the constitutionality of R.C. 4123.93 and R.C.
4123.931, passed as Senate Bill 227 and made effective in April 2003. Therefore, this
Court certifies questions 1 through 3 to the Supreme Court of Ohio.
Kard and Racine assert that they are immune from liability based on the statute of repose for products liability claims provided at R.C. 2305.10. To fully adjudicate this matter and fully determine the rights and liabilities of each party, this Court needs a determination by the Ohio Supreme Court regarding the constitutionality of the statutes under the Ohio Constitution. The Supreme Court of Ohio has not yet had opportunity to issue a decision on the constitutionality of R.C. 2305.10, passed as Senate Bill 80, and made effective in April, 2005. Therefore this Court certifies questions 10 through 14 to the Supreme Court of Ohio.
C. THE CERTIFIED QUESTIONS
1. Do the statutes allowing subrogation for workers' compensation benefits, RC. 4123.93 and 4123.931, violate the takings clause, Article I, Section 19, of the Ohio constitution?
2. Do R.C. 4123.93 and 4123.931 violate the due process, and remedies clause, Article I, Section 16, of the Ohio constitution?
3. Do R.C. 4123.93 and 4123.931 violate the equal protection clause, Article I, Section 2 of the Ohio constitution?
10. Do R.C. 2305.10(C) and (F) violate the open courts provision of the Ohio Constitution, Article I Section 16?
11. Do R.C. 2305.10(C) and (F) violate the takings clause, Article I, Section 19, of the Ohio constitution?
12. Do R.C. 2305.10(C) and (F) violate the due process and remedies clause, Article I, Section 16, of the Ohio constitution?
13. Do R.C. 2305.10(C) and (F) violate the equal protection clause, Article I, Section 2, of the Ohio constitution? Case 3:06-cv-01604-JGC Document 33 Filed 10/11/2006 Page 4 of 5
14. Do R.C. 2305.10 (C) and (F) violate the ban on retroactive laws, Article II, Section 28 of the Ohio constitution?
D. COUNSEL FOR THE PARTIES
Counsel for each party is provided below:
Kevin J. Boissoneault Bonnie E. Haims Russell Gerney GALLON, TAKACS, BOISSONEAULT & SCHAFFER Co. L.P.A. 3516 Granite Circle Toledo, OH 43617-1172 (419) 843-2001 Counsel for Plaintiffs
JIM PETRO Ohio Attorney General
Elise Porter Assistant Attorney General Workers Compensation Section 150 E. Gay Street, 22"d Floor Columbus, OH 43215 (614) 466-6730 Counsel for Attorney General of the State of Ohio
Kimberly Donovan KERGER & ASSOCIATES 33 S. Michigan Street, Suite 100 Toledo, OH 43604 local Counsel for General Nlotors Corporation
Patrick N. Fanning David C. Vogel Dan E. Cranshaw LATHROP & GAGE L.C. 2345 Grand Boulevard Suite 2800 Kansas City, MO 64108-2684 (816) 292-2000 Counselfor General Motors Corporation
Robert H. Eddy Anna S. Fister GALLAGHER SHARP
10 Case 3:06-cv-01604-JGC Document 33 Filed 10/11/2006 Page 5 of 5
420 Madison Avenue, Suite 1250 Toledo, OH 43604 (419) 241-4860 Counselfor Kard Corporation and Racine Federated, Inc. National/Kard Division
E. MOVING PARTY
The Plaintiff Douglas Groch is designated as the moving party.
s/ James G. Carr Hon. James G. Carr
11 EXHIBIT 2 Case 3:06-cv-01604-JGC Document 42 Filed 11/27/2006 Page 1 of 3
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION
GROCH et al. * Case No. 3:06-CV-1604
Plaintiffs * Judge JAMES G. CARR V. * AMENDED ORDER GENERAL MOTORS CORPORATION, et al.,
Defendants.
There are issues of Ohio law that may be determinative of the present case and for
which there is no controlling precedent in the decisions of the Supreme Court of Ohio.
Therefore, this Court finds it appropriate to certify questions of Ohio law to the Supreme
Court of Ohio.
A. NAME OF THE CASE AND NAMES OF ALL PARTIES
The name of this case is Douglas Grocla, et al. v. Gen.eral Motors Corporation, et al.
case number 3:06-CV-1604. The parties in this case are: Plaintiffs Douglas Groch and Chloe
Groch versus Defendants General Motors Corporation, Kard Corporation and Racine
Federated, Inc. The Attorney General of Ohio is a party for purposes of defending the
constitutionality of the Ohio statutes at issue.
B. BRIEF STATEMENT OF FACTS
The Amended Complaint alleges the following: Plaintiff Douglas Groch ("Groch")
was injured on March 3, 2005 when the trim press he was operating came down on his right
arm and wrist. At the time of his injury Plaintiff Douglas Groch was acting in the course and
scope of his employment with Defendant General Motors Corporation. The trim press that he
was using was manufactured by Defendants Kard Corporation and Racine Federated, Inc. Case 3:06-cv-01604-JGC Document 42 Filed 11/27/2006 Page 2 of 3
Groch bought an action in the Court of Common Pleas, Lucas County, Ohio seeking
damages from Defendant General Motors Corporation ("GM") based on a theory of employer
intentional tort and from Defendants Kard Corporation and Racine Federated, Inc.
(respectively, "Kard" and "Racine") based on a theory of product liability. Plaintiff Chloe
Groch ("Chloe") sought damages for loss of consortium.
T'he action was removed to federal court by GM. Federal jurisdiction is based on 28
U.S.C. 1332 because there is diversity between the Plaintiffs and the Defendants, and the
amount in controversy exceeds $75,000.00.
This Court has previously certified several questions to the Supreme Court of Ohio
which need not be repeated here. Plaintiffs have remedied the defect in their pleading which
prevented certification of Proposed Question number 15. Said defect has been corrected.
C. THE CERTIFIED QUESTION
The Court now finds that in order to fully adjudicate the matter before it, it must
certify one additional question to the Supreme Court of Ohio:
15. Does Senate Bil180 violate the one-subject rule, Article lI, Section 15, of the Ohio Constitution?
D. COUNSEL FOR THE PARTIES
Counsel for each party is provided below:
Kevin J. Boissoneault Bonnie E. Haims Russell Gerney GALLoN, TAKACs, BolssoxFAuLT & SCHAFFER Co. L.P.A. 3516 Granite Circle Toledo, OH 43617-1172 (419) 843-2001 Counsel for Plaintiffs Case 3:06-cv-01604-JGC Document 42 Filed 11/27/2006 Page 3 of 3
Elise Porter Assistant Attorney General Workers Compensation Section 150 E. Gay Street, 22od Floor Columbus, OH 43215 (614) 466-6730 Counsel for Attorney General of the State of Ohio
Kimberly Donovan KERGER & ASSOCIATES 33 S. Michigan Street, Suite 100 Toledo, OH 43604 local Counselfor General Motors Corporation
Patrick N. Fanning David C. Vogel Dan E. Cranshaw LATHRoP & GAGE L.C. 2345 Grand Boulevard Suite 2800 Kansas City, MO 64108-2684 (816) 292-2000 Counsel for General Motors Corporation
Robert H. Eddy Anna S. Fister GALLAGHER SHARP 420 Madison Avenue, Suite 1250 Toledo, OH 43604 (419) 241-4860 Counsel for Kard Corporation and Racine Federated, Inc. National/Kard Division
E. MOVING PARTY
The Plaintiff Douglas Groch is designated as the moving party.
s/ James G. Carr
Hon. James G. Carr EXHIBIT 3 cTI. .0^ -...... ifi ---.L - ti+111T_'- iWEl^'Z-1_U0i; JLI; C / CUUt)
iylApCOp l, IVI=;1GEL, CLERK ;tJPnE149E COURT OF OHIO
Douglas Groch et al. Case No. 2006-1914 V. ENTRY General Motors Corporation et al.
This cause is pending before the Court on the certification of state law questions from the United States District Court, Northern District of Ohio, Western Division. On review of the preliminary memoranda pursuant to S.Ct.Prac.R. XVIII(6), the Court will answer the following questions:
1. Do the statutes allowing subrogation for workers' compensation benefits, R.C. 4123.93 and 4123.931, violate the takings clause, Article I, Section 19, of the Ohio Constitution?
2. DoR.C. 4123.93 and 4123.931 violate the due process and remedies clause, Article 1, Section 16, of the Ohio Constitution?
3. Do R.C. 4123.93 and 4123.931 violate the equal protection clause, Article I, Section 2, of the Ohio Constitution?
4. Do R.C. 2305.10(C) and (F) violate the open courts provision of Article I, Section 16, of the Ohio Constitution?
5. Do R.C. 2305.10(C) and (F) violate the takings clause, Article 1, Section 19, of the Ohio Constitution?
6. Do. R.C. 2305.10(C) and (F) violate the due process and remedies clause, Article I, Section 16, of the Ohio Constitution?
7. Do R.C. 2305.10(C) and (F) violate the equal protection clause, Article I, Section 19, of the Ohio Constitution?
8. Do R.C. 2305.10(C) and (F) violate the ban on retroactive laws, Article 11, Section 28, of the Ohio Constitution?
9. Does Senate Bill 80 violate the one-subject rule, Article 11, Section 15, of the Ohio Constitution? It is further ordered that petitioners shall file a merit brief within 40 days of the date of this entry, and the parties shall otherwise proceed to brief this case in accordance with S.Ct.Prac.R. XVIII(7) and S.Ct.Prac.R. VI.
(United States Federal Court ; No. 306CV 16904) EXHIBIT 4 IN THE COURT OF COMMON PLEAS, LUCAS COUNTY, OHIO
DOUGLASGROCH Case Na ^ v)^ r 0 t]il03oL4 526 Sioux Trail Rossford, OH 43460 JUDGEp-
and COMPLAINT WITH JURY DEMAND ENDORSED HEREIN CHLOE GROCH, a minor by and through * her father and next friend, Douglas Groch 526 Sioux Trail * Kevin J. Boissoneault (#0040180) Rossford, OH 43460 Bonnie E. Haims (#0072465) * Russell W. Gerney (#0080186) Plaintiffs, GALLON, TAKACS, BOISSONEAULT * & SCHAFFER CO, L.P.A. vs. [email protected] * 3516 Granite Circle GENERAL MOTORS CORPORATION Toledo, Ohio 43617-1172 c/o CT Corporation System, * Phone: (419) 843-2001 1300 East Ninth Street Fax: (419) 841-2608 Cleveland, OH 44114 * Attorneys for Plaintiffs
and,
KARD CORPORATION s/a Richard Haupt 2750 E. Regal Park Drive Anaheim, CA 92806
and,
LW Ov,6ra pr GALLDN, TAKADS, BDI360NE0.ULT 6 6GHAFFEF DD., LP.A 7ME JACK GNLDN BUILDING 5516 GRANRE CINDLE TGLEDD, OHID<991]-11]Y
^^m RACINE FEDERATED, INC., NationaUKard division s/a Glenn R. Coates 2200 South Street Racine, WI 53404-1326
and,
JOHN DOES NUMBER ONE THROUGH THREE Whose present name and address is unknown
Defendants.
Now come Plaintiffs, by and through counsel Kevin J. Boissoneault, Esq., Bonnie E.
Haims, Esq., Russell W. Gerney, Esq., and Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A.
and for their Complaint state and avers as follows:
GENERAL ALLEGATIONS
1. At all relevant times, Plaintiff Douglas Groch was a resident of Rossford, Wood County
Ohio, and was an employee of Defendant General Motors and/or John Doe Number One.
2. At all relevant times, Chloe Groch, a minor by and through her father and next friend
Douglas Groch, resided in Rossford, Wood County, Ohio.
3. At all relevant times, Defendant General Motors Corporation ("General Motors") and/or
John Doe Number One is a Delaware corporation, duly licensed and doing business in the
State of Ohio, at the Powertrain Plant on West Alexis Road in Toledo, Lucas County,
Ohio. Any reference to Defendant General Motors and/or John Doe Number One will
include reference to its owners, agents, servants, and employees who at all pertinent times
L...r Orenu Or BPLION,TAKqCS,BOISSONMLT 2 650NAFFERCO.,LPA THE JACK GN.ION BNILGING 5518 ORqNRE GR(f.E TOLEDO, ONIO aa61 T-11 T3
..59W. were acting within the course and scope of their employment and/or agency with
Defendant General Motors and/or John Doe Number One. Said Defendant was also a self-
insured Employer for Ohio Workers' Compensation purposes.
4. At all times material hereto, Defendant Kard Corporation and/or John Doe Number Two
was a corporation, duly authorized and licensed to do business in the State of Ohio and
designed and/or manufactured and/or marketed and/or supplied and/or distributed and/or
sold for use in the State of Ohio the trim press at issue in this case and its component parts.
Any reference to Defendant Kard Corporation and/or John Doe Nuinber Two will include
references to its owners, agents, servants, and employees who, at all pertinent times
thereto, were acting within the course and scope of their employment and/or agency with
Defendant.
5. At all times material hereto, Defendant Racine Federated, Inc., NationallKard divisions,
(hereafter "Racine") and/or John Doe Number Three was a corporation, duly authorized
and licensed to do business in the State of Ohio and assumed the liabilities of Kard
Corporation and/or John Doe Number Two and/or designed and/or manufactured and/or
marketed and/or supplied and/or distributed and/or sold for use in the State of Ohio the
Kard hydraulic trim press at issue in this case and its component parts. Any reference to
Defendant Racine and/or John Doe Number Three will include references to its owners,
agents, servants, and employees who, at all pertinent times thereto, were acting within the
course and scope of their employment and/or agency with Defendant.
6. At all times material hereto, Defendant John Does Numbers One through Three, whose
present names and addresses remain unknown despite Plaintiffs' best and reasonable
LuvOrmrsGr :rY1GN, TN(ACb, BG65GNEA1ILT 3 &9CNNFFERfA„1_PA iME JAd( f=N1GN BIIILOING 3516GRANItECIPCLE TOLEDO. Oi4o43611-1112 s®.m efforts to ascertain same, were corporations and/or other legal entities that conducted
business in Toledo, Lucas County, Ohio.
7. At all relevant times, pursuant to Ohio Revised Code Sections 4123.93 and
4123.931, Defendant General Motors claims a right of subrogation as a self-insured
statutory subrogee in the within action.
8. On or about March 3, 2005, Plaintiff Douglas Groch was acting in the cvurse and scope
of his employment with Defendant General Motors Co. and/or John Doe Number One.
9. On or about March 3, 2005, Plaintiff Douglas Grochwas seriously injured while operating
a trim press machine when, despite the alleged safety features, the trim die on the press
came down on his right forearm and wrist.
COUNT ONE
10. Plaintiffs reallege and incorporates by reference the above paragraph as if sanle were fully
set forth herein.
11. The subject trim press was at all relevant tinies owned by and/or under the control of
Defendant General Motors Co. and/or John Doe Number One.
12. On or about March 3, 2005, Defendant General Motors Co. and/or John Doe Number One,
and/or their agents, and/or their servants, and/or their employees intentionally,
purposefully, knowingly, and with substantial certainty that they would cause severe injury
to Plaintiff or others similarly situated, did the following acts, including but not limited
to:
a. Knowingly required Plaintiff Douglas Groch to operate the subject trim press machine which was not equipped with proper safety devices to prevent the press from coming down on his arm and wrist;
Lww Orrmu Dr iNLLON.TNGCB. BOISSONEAULT 4 SbCHqFFEFCO.,L.PA THEAAOKGNJANBU6DM0 9518ePFNRELMPCLE TOLEDO, OW O 43817-1172 b. Knowingly failed to properly install, replace, repair, or inspect safety devices designed to prevent the trim press machine from causing severe injury;
c. Knowingly and improperly programmed the safety controls ofthemachine guarding system designed to prevent the trim press machine from causing severe injury;
d. Knowingly failed to warn employees, including Plaintiff Douglas Groch, that the aforementioned trim press machine exposed them to danger of serious injuries, despite knowing the tendency of the machine to malfunction;
e. Knowing failed to remove or eliminate an unreasonably dangerous process and/or procedure and/or defective condition in the press, despite knowing the certainty of the trim press machine to injure its employees;
Knowingly operating the subject trim press machine without proper safety equipment in violation of government and/or industry safety regulations and standards;
Knowingly required Plaintiff Douglas Groch to work as set forth herein above despite knowing the danger of serious injuries to operators of the subject trim press machine was substantially certain to occur under the circumstances as set forth herein above;
h. Knowingly failed to train and/or adequately train Plaintiff Douglas Groch regarding safe ways to operate and work witli the subject trim press machine; and,
i. Knowingly ignored several malfanctions of the machine that occurred on the same day as the injury to Plaintiff, exposing Plaintiff Douglas Groch and other operators to a risk of serious bodily harm attendant to circumstances as described herein.
13. All of the foregoing actions and inactions on the part of Defendant General Motors Co.
and/or John Doe Number One demonstrate, at a minimum, their knowledge of a dangerous
process, procedure and condition with inadequately equipped trim press machines,
4w Oricec 0. Jll.ON,TNCRCB.B0196oNFAULT 5 6 BCNFIRPERCO., LP.0. THE JACK OnLIAN BUILMNG 35160R5NIfECIRCLE TOlE00, OM0 e9817-1172
0 inadequate safety training, and knowledge of the dangerous condition of the subject trim
press machine.
14. All of the foregoing demonstrates Defendant General Motors Co. and/or John Doe
Number One's knowledge, at a minimum, that serious injury was substantially certain to
occur as the subj ect trim press machine was inadequately equipped to protect any operators
and Plaintiff Douglas Groch was told to operate the trim press machine by his employer,
General Motors Co. and/or John Doe Number One.
15. Finally, at a minimum, Defendant General Motors Co. and/or John Doe Number One
required Plaintiff Douglas Groch to be exposed to all of the foregoing as part of his
eniployment at the time of the subject incident.
16. The intentional and purposeful acts of Defendant General Motors Co. and/or John Doe
Number One directly and proximately caused Plaintiff Douglas Groch to sustain injuries
and damages, including, but not limited to, the following:
a. Severe and pennanent injuries, scarring, and disfigurement to his arm and leg; b. Medical expenses, past and future; c. Pain and suffering, past and future; d. Loss of earnings and earning capacity, past and future; and, e. Disruption of lifestyle and enjoyment of life.
COUNT TWO
17. Plaintiffs reallege and incorporate by reference the aforementioned paragraphs as if the
sanie were fully set forth herein. .
18. Defendant Kard Corporation and/or John Doe Number Two owed a duty to Plaintiff
and others similarly situated to provide a product reasonably safe for all reasonable,
L,rv Or.ces Or GNlON. TA1tAC5, GOISSONEAULT 6 6 SOHAFFEH 00., LPA THE JAOK OALLON BUILDING 95isGk9NITECIR0.E TOLEDO, OW04811-tt12
^^a foreseeable and intended uses of the product.
19. Defendant Kard Corporation and/or John Doe Number Two failed to provide the trnn
press and its component parts at issue in this case in a reasonably safe condition for all
reasonable, foreseeable, and intended uses in one or more of the following respects:
a. Defectively designing the trim press and/or its component parts in an unreasonably unsafe manner;
b. Defectively manufacturing the trim press and/or its component parts in an unreasonably unsafe manner;
c. Failing to adequately warn and/or instruct Plaintiff or others similarly situated of the hazards, risks, and dangers Plaintiff faced when the trim press and/or its component parts is/are used;
Breaching express and implied warranties made to Plaintiff or others similarly situated regarding the trim press and/or its component parts; _
e. Failing to instruct and/or warn users regarding the proper use of the trim press and/or its component parts;
f. Defectively designing the trim press and/or its component parts . without proper safety features;
g• Defectively manufacturing the trim press and/or its component parts without proper safety features; and,
20. As a direct and proximate result of Defendant Kard Corporation and/or John Doe
Number Two's failure as set forth above, Douglas Groch sustained severe, permanent
and disabling injuries including, but not limited to, the following:
a. Severe and permanent injuries, scarring, and disfigurement to his arm and leg; b. Medical expenses, past and future; c. Pain and suffering, past and future; d. Loss of earnings and earning capacity, past and future; and, e. Disruption of lifestyle and enjoyment of life.
Luv Onm OF GNLLON,TAKACS. BOISSONFAULT 7 &SCHAfFERCO.,LP.A TNE JACK GALLON BUILDMO 3516 ORNJRE CIRCLE T'OLEDD.OHIO U611-11T2
s^o 21. Pursuant to Ohio Revised Code § 2307.71, et seq., and Ohio cormnon law, Defendant
Kard Corporation and/or John Doe Number Two are strictly liable to Plaintiffs for the
injuries and losses they suffered.
22. Defendant Kard Corporation and/or John Doe Number Two's action in providing a
unreasonably dangerous trim press and its component parts directly and proximately
caused Plaintiff Douglas Groch's injuries during his use and under facts and
circumstances that were foreseeable to Defendant Kard Corporation of the trim press.
COUNT THREE
23. Plaintiffs reallege and incorporate by reference the aforementioned paragraphs as if the
same were fully set forth herein.
24. Defendant Kard Corporation and/or John Doe Number Two owed a duty to Plaintiff
and others similarly situated to provide a product reasonably safe for all reasonable,
foreseeable and intended uses of the product.
25. Defendant Kard Corporation and/or John Doe Number Two breached that duty when
they failed to provide a trim press and/or its component parts at issue in this case in a
reasonably safe condition for all reasonable, foreseeable, and intended uses in one or
more of the following respects:
a. Negligently designing the trim press and/or its component parts at issue in this case in an unreasonably unsafe manner;
b. Negligently manufacturing the trim press and/or its component parts at issue in this case in an unreasonably unsafe manner;
c. Negligently failing to adequately warn and/or instruct Plaintiff or others similarly situated of the hazards, risks, and dangers Plaintiff
Li.w O.Or. GPLLON,TAKACS,BOIS3ONE/WLT 8 fl 6CHAFFEF CO., LPA TME JACK GAILON BVLLDIN6 3518GFlAHffECIHCLE TOLEDO, DHWD4ae17-1172
s®a faced when using the subject trim press and/or its component parts; and/or
d. Negligently breaching express and implied warranties made to Plaintiff or others similarly situated regarding the trim press and/or its component parts at issue in this case.
26. As a direct and proximate result of Defendant Kard Corporation and/or John Doe
Number Two's breach as set forth above, Plaintiff Douglas Groch sustained severe,
permanent and disabling injuries including, but not limited to,
a. Severe and permanent injuries, scarring, and disfigurement to his arm and leg; b. Medical expenses, past and future; c. Pain and suffering, past and future; d. Loss of earnings and eaming capacity, past and future; and, e. Disruption of lifestyle and enjoyment of life.
27. Defendant Kard Corporation and/or John Doe Number Two's action in providing a
unreasonably dangerous trim press and its component parts directly and proximately
caused Plaintiff Douglas Groch's injuries during his use and under facts and
circumstances that were foreseeable to Defendant Kard Corporation of the trim press.
COUNT FOUR
28. Plaintiffs reallege and incorporate by reference the aforementioned paragraphs as if the
same were fully set forth herein.
29. Defendant Racine and/or John Doe Number Three owed a duty to Plaintiff and others
similarly situated to provide a product reasonably safe for all reasonable, foreseeable
and intended uses of the product.
30. Defendant Racine and/or John Doe Nutnber Three failed to provide the trim press and
its component parts at issue in this case in a reasonably safe condition for all
Li.x On[a Or iN10N, TAIfAC3, B01860NFAULT 9 85CHqFFERCO.,LP.A THEJACKaN10NBU4DIN0 35tB GMNRE CIRCLE TOLEDO, 0W0 a381f-11T1
.®® reasonable, foreseeable, and intended uses in one or more of the following respects:
a. Defectively designing the trim press and/or its component parts in an unreasonably unsafe manner;
b. Defectively manufacturing the trim press and/or its component parts in an unreasonably unsafe manner;
c. Failing to adequately warn and/or instruct Plaintiff or others similarly situated of the hazards, risks, and dangers Plaintiff faced when the trim press and/or its component parts is/are used;
d. Breaching express and implied warranties made to Plaintiff or others similarly situated regarding the trim press and/or its component parts;
e. Failing to instruct and/or warn users regarding the proper use of the trim press and/or its component parts;
f. Defectively designing the trim press and/or its component parts without proper safety features;
g• Defectively manufacturing the trim press and/or its component parts without proper safety features; and,
31. As a direct and proximate result of Defendant Racine and/or John Doe Number Three's
failure as set forth above, Douglas Groch sustained severe, permanent and disabling
injuries including, but not limited to, the following:
a. Severe and permanent injuries, scarring, and disfigurement to his arm and leg; b. Medical expenses, past and future; c. Pain and suffering, past and future; d. Loss of earnings and earning capacity, past and future; and, e. Disruption of lifestyle and enjoyment of life.
32. Pursuant to Ohio Revised Code § 2307.71, et seq., and Ohio common law, Defendant
Racine and/or John Doe Number Three are strictly liable to Plaintiffs for the injuries
La o1rc® Or iALLON,TAKFC5.B0I580NEAVLT 10 &80HAFFFACO.,LP.A
iHE JACK 4ALI.ON Bl1R01N0 e&t66MNRECIRCLE TOLEDO, 0140 <9e17-nTe
^^m and losses they suffered.
33. Defendant Racine and/or John Doe Number Three's action in providing an
unreasonably dangerous trim press and its component parts directly and proximately
caused Plaintiff Douglas Groch's injuries during his use and under facts and
circumstances that were foreseeable.to Defendant Racine and/or John Doe Number
Three of the trim press.
COUNT FIVE
34. Plaintiffs reallege and incorporate by reference the aforementioned paragraphs as if the
same were fully set forth herein.
35. Defendant Racine and/or John Doe Number Three owed a duty to Plaintiff Groch and
others similarly situated to provide a product reasonably safe for all reasonable,
foreseeable and intended uses of the product.
36. Defendant Racine and/or John Doe Number Three breached that duty when they failed
to provide a trim press and/or its component parts at issue in this case in a reasonably
safe condition for all reasonable, foreseeable, and intended uses in one or more of the
following respects:
a. Negligently designing the trim press and/or its component parts at issue in this case in an unreasonably unsafe manner;
b. Negligently manufacturing the trim press and/or its component parts at issue in this case in an unreasonably unsafe manner;
c. Negligently failing to adequately warn and/or instruct Plaintiff or others similarly situated of the hazards, risks, and dangers Plaintiff faced when using the subject trim press and/or its component parts; and/or
GOLLDN,rFKACS,6DiSSONEAULr I1 6SCXAFEERCO.,LP.M1 LHEJACK G410N 9UIlDINO g5t6GRANRECIRCLE TOLEDO, OV4D 4611-117E d. Negligently breaching express and implied warranties made to Plaintiffor others similarly situated regarding the trim press and/or its component parts at issue in this case.
37. As a direct and proximate result of Defendant Racine and/or John Doe Nuniber Three's
breach as set forth above, Plaintiff Douglas Groch sustained severe, permanent and
disabling injuries including, but not limited to,
a. Severe and pennanent injuries, scarring, and disfigurement to his arm and leg; b. Medical expenses, past and future; C. Pain and suffering, past and future; d. Loss of earnings and earning capacity, past and future; and, e. Disruption of lifestyle and enjoyment of life.
38. Defendant Racine and/or John Doe Number Three's action in providing a unreasonably
dangerous trim press and its component parts directly and proximately caused Plaintiff
Douglas Groch's injuries during his use and under facts and circumstances that were
foreseeable to Defendant Racine of the trim press.
COUNT SIX
39. Plaintiffs reallege and incorporate by reference the aforementioned paragraphs as if the
same were fully set fortli herein.
40. At all relevant times, Plaintiff Chloe Groch was the daughter of Plaintiff Douglas
Groch.
41. As a direct and proximate result of Defendants' actions or inactions, Plaintiff Chloe
Groch sustained a loss of consortium of her father, Douglas Groch.
COUNT SEVEN
42. Plaintiff realleges and reincorporates by reference the aforementioned paragraphs as if
uwa.^a ;P110N, TFJGCB, 60155CNENtILT 12 63CHAFFERCC.IPA THE JnCK 0.4LLCN BULLDING 5516GRN11fECIRIXE TOLEDD, ORI C ai91 T-11'/2
..Oeo^® the same were fully set forth herein.
43. To the extent that Ohio Revised Code Sections 4123.93 and 4123.931 and its
provisions apply to this cause of action, said provisions are unconstitutional in whole
and/or in part.
WHEREFORE, Plaintiffs respectfully pray for judgment on the above mentioned
Counts against Defendant General Motors Co., Kard Corporation, Racine, and/or John Does
Number One through Three for an award of damages in any sum of money in excess of
Twenty-Five Thousand Dollars ($25,000.00), adequate to compensate Plaintiffs for their
darnages, plus costs and expenses incurred herein, prejudgment interest at the highest statutory
rate allowed by law from the date the Plaintiffs' cause of action accrned, court costs, and such
other relief as the Court deems just and equitable.
WHEREFORE, Plaintiffs further pray for a declaration that Ohio Revised Code
Sections 4123.93 and 4123.931 are unconstitutional in whole and are unenforceable.
Respectfully submitted,
GALLON, TAKACS, BOISSONEAULT & SCHAFFER CO., L.P.A.
Kevin 7. Boiss Bonnie E. Haims Russell W. Gerney Attorneys for Plaintiffs
ifl10N, TAKqC9, 6015SONEAULT 13 E9cH4FFEA00.,LPA TME JACK ORLLON 6UILDINO 55160R4NITELIFCLE TOLEUO, mo M17.1+I2 .®m JURY DEMAND
Plaintiffs herein demand a trial by jury on all issues so triable in this action.
Respectfully submitted,
GALLON, TAKACS, BOISSONEAULT & SCHAFFER CO., L.P.A.
By: Kevin J. Boi§soneault Bonnie E. Haims Russell W. Gerney Attorneys for Plaintiffs
S'1Rrsnnel 1NwP\CUWL^A1R^UrocA.cmp.wpd
txv Ormee Cr A1GN, TAlUCS. 60L^SCNEAIAT 14 d SCHAFFERCC. LP.A THE JACK GALLCN BUItDINC 9516DRANRECIRCLE TCLEDC. OHIO 4817-1172
e.06D.. EXHIBIT 5 Page 1
LEXSTAT OH. CONST. ART. I, § 2
PAGE'S OHIO REVISED CODE ANNOTATED Copyright (c) 2006 by Matthew Bender & Company, Inc a member of the LexisNexis Group All rights reserved.
• CURRENT THROUGH LEGISLATION PASSED BY THE 126TH OHIO GENERAL ASSEMBLY * * AND FILED WITH THE SECRETARY OF STATE THROUGH JANUARY 2, 2007 * * AND SB 260 (FILE 172), FILED JANUARY 3, 2007 * * ANNOTATIONS CURRENT THROUGH OCTOBER 1, 2006
CONSTITUTION OF THE STATE OF OHIO ARTICLE I. BILL OF RIGHTS
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Oh. Const. Art. I, § 2 (2006)
§ 2. Right to alter, reform, or abolish government, and repeal special privileges
All political power is inherent in the people. Govemment is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly. EXHIBIT 6 Page 1
LEXSTAT OH CONST 116
PAGE'S OHIO REVISED CODE ANNOTATED Copyright (c) 2006 by Matthew Bender & Company, Inc a member of the LexisNexis Group All rights reserved.
* CURRENT THROUGH LEGISLATION PASSED BY THE 126TH OHIO GENERAL ASSEMBLY * * AND FILED WITH THE SECRETARY OF STATE THROUGH JANUARY 2, 2007 * * AND SB 260 (FILE 172), FILED JANUARY 3, 2007 * * ANNOTATIONS CURRENT THROUGH OCTOBER 1, 2006 *
CONSTITUTION OF THE STATE OF OHIO ARTICLE I. BILL OF RIGHTS
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Oh. Const. Art. I, § 16 (2006)
§ 16. Redress in courts
All 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.
[Suits against the state.] Suits may be brought against the state, in such courts and in such manner, as may be pro- vided by law.
HISTORY: (As amended September 3, 1912.) EXHIBIT 7 Page I
LEXSTAT OH. CONST. ART. I, § 19
PAGE'S OHIO REVISED CODE ANNOTATED Copyright (c) 2006 by Matthew Bender & Company, Inc a member of the LexisNexis Group All rights reserved.
* CURRENT THROUGH LEGISLATION PASSED BY THE 126TH OHIO GENERAL ASSEMBLY * * AND FILED WITH THE SECRETARY OF STATE THROUGH JANUARY 2, 2007 * * AND SB 260 (FILE 172), FILED JANUARY 3, 2007 * * ANNOTATIONS CURRENT THROUGH OCTOBER 1, 2006 *
CONSTITUTION OF THE STATE OF OHIO ARTICLE I. BILL OF RIGHTS
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Oh. Const. Art. I, § 19 (2006)
§ 19. Inviolability of private property
Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which. shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first se- cured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner. EXHIBIT 8 Page 1
LEXSTAT OH. CONST. ART. II, § 28
PAGE'S OHIO REVISED CODE ANNOTATED Copyright (c) 2006 by Matthew Bender & Company, Inc a member of the LexisNexis Group All rights reserved.
* CURRENT THROUGH LEGISLATION PASSED BY THE 126TH OHIO GENERAL ASSEMBLY * * AND FILED WITH THE SECRETARY OF STATE THROUGH JANUARY 2, 2007 * * AND SB 260 (FILE 172), FILED JANUARY 3, 2007 * * ANNOTATIONS CURRENT THROUGH OCTOBER 1, 2006 *
CONSTITUTION OF THE STATE OF OHIO ARTICLE II. LEGISLATIVE
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Oh. Const. Art. II, § 28 (2006)
§ 28. Retroactive laws
The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state. EXHIBIT 9 Page I
LEXSTAT OH. CONST. ART. II, § 15
PAGE'S OHIO REVISED CODE ANNOTATED Copyright (c) 2006 by Matthew Bender & Company, Inc a member of the LexisNexis Group All rights reserved.
* CURRENT THROUGH LEGISLATION PASSED BY THE 126TH OHIO GENERAL ASSEMBLY * * AND FILED WITH THE SECRETARY OF STATE THROUGH JANUARY 2, 2007 * * AND SB 260 (FILE 172), FILED JANUARY 3, 2007 * * ANNOTATIONS CURRENT THROUGH OCTOBER 1, 2006 *
CONSTITUTION OF THE STATE OF OHIO ARTICLE II. LEGISLATIVE
GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
Oh. Const. Art. II, § 15 (2006)
§ 15. How bills shall be passed
(A) The general assembly shall enact no law except by bill, and no bill shall be passed without the concurrence of a majority of the members elected to each house. Bills may originate in either house, but may be altered, amended, or rejected in the other. (B) The style of the laws of this state shall be, "be it enacted by the general assembly of the state of Ohio." (C) Every bill shall be considered by each house on three different days, unless two-thirds of the members elected to the house in which it is pending suspend this requirement, and every individual consideration of a bill or action sus- pending the requirement shall be recorded in the journal of the respective house. No bill may be passed until the bill has been reproduced and distributed to members of the house in which it is pending and every amendment been made avail- able upon a member's request. (D) No bill shall contain more than one subject, which shall be clearly expressed in its title. No law shall be revived or amended unless the new act contains the entire act revived, or the section or sections amended, and the section or sections amended shall be repealed. (E) Every bill which has passed both houses of the general assembly shall be signed by the presiding officer of each house to certify that the procedural requirements for passage have been met and shall be presented forthwith to the gov- emor for his approval. (F) Everyjoint resolution which has been adopted in both houses of the general assembly shall be signed by the presiding officer of each house to certify that the procedural requirements for adoption have been met and shall forth- with be filed with the secretary of state.
HISTORY: (Enacted May 8, 1973. Former § 15 repealed, see HJR No.5, 110th General Assembly.) EXHIBIT 10 Page 1
9 of 23 DOCUMENTS
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*** ARCHIVE MATERIAL ***
* CURRENT THROUGH LEGISLATION PASSED BY THE 126TH OHIO GENERAL ASSEMBLY * * AND FILED WITH THE SECRETARY OF STATE THROUGH DECEMBER 18, 2005 * * ANNOTATIONS CURRENT THROUGH OCTOBER 1, 2005 *
TITLE 23. COURTS -- COMMON PLEAS CHAPTER 2305. JURISDICTION; LIMITATION OF ACTIONS TORTS
ORC Ann. 2305.10 (2005)
§ 2305.10. Product liability claims and actions for bodily injury or injuring personal property
(A) Except as provided in division (C) of this section, an action based on a product liability claim and an action for bodily injury or injuring personal property shall be brought within two years after the cause of action accrues. Except as provided in divisions (B)(1), (2), (3), (4), and (5) of this section, a cause of action accrues under this division when the injury or loss to person or property occurs. (B) (1) For purposes of division (A) of this section, a cause of action for bodily injury that is not described in divi- sion (B)(2), (3), (4), or (5) of this section and that is caused by exposure to hazardous or toxic chemicals, ethical drugs, or ethical medical devices accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable dili- gence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, whichever date oc- curs first. (2) For purposes of division (A) of this section, a cause of action for bodily injury caused by exposure to chro- mium in any of its chemical forms accrues upon the date on which the plaintiff is informed by competent medical au- thority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of rea- sonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, which- ever date occurs first. (3) For purposes of division (A) of this section, a cause of action for bodily injury incurred by a veteran through exposure to chemical defoliants or herbicides or other causative agents, including agent orange, accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, whichever date occurs first. (4) For purposes of division (A) of this section, a cause of action for bodily injury caused by exposure to diethyl- stilbestrol or other nonsteroidal synthetic estrogens, including exposure before birth, accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, whichever date occurs first. (5) For purposes of division (A) of this section, a cause of action for bodily injury caused by exposure to asbestos accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, whichever date occurs first. Page 2 ORC Ann. 2305.10
(C) (1) Except as otherwise provided in divisions (C)(2), (3), (4), (5), (6), and (7) of this section or in section 2305.19 of the Revised Code, no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in ivhich the product was used as a component in the production, construc- tion, creation, assembly, or rebuilding of another product. (2) Division (C)(1) of this section does not apply if the manufacturer or supplier of a product engaged in fraud in regard to information about the product and the fraud contributed to the harm that is alleged in a product liability claim involving that product. (3) Division (C)(1) of this section does not bar an action based on a product liability claim against a manufacturer or supplier of a product who made an express, written warranty as to the safety of the product that was for a period longer than ten years and that, at the time of the accrual of the cause of action, has not expired in accordance with the terms of that warranty. (4) If the cause of action relative to a product liability claim accrues during the ten-year period described in divi- sion (C)(1) of this section but less than two years prior to the expiration of that period, an action based on the product liability claim may be coinmenced within two years after the cause of action accrues. (5) If a cause of action relative to a product liability claim accrues during the ten-year period described in division (C)(1) of this section and the claimant cannot commence an action during that period due to a disability described in section 2305.16 of the Revised Code, an action based on the product liability claim may be commenced within two years after the disability is removed. (6) Division (C)(1) of this section does not bar an action for bodily injury caused by exposure to asbestos if the cause of action that is the basis of the action accrues upon the date on which the plaintiff is informed by competent medical authority that tha plaintiff has an injury that is related to the exposure, or upon the date on which by the exer- cise of reasonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the expo- sure, whichever date occurs first. (7) (a) Division (C)(1) of this section does not bar an action based on a product liability claim against a inanufac- turer or supplier of a product if all of the following apply: (i) The action is for bodily injury. (ii) The product involved is a substance or device described in division (B)(1), (2), (3), or (4) of this section. (iii) The bodily injury results from exposure to the product during the ten-year period described in division (C)(1) of this section. (b) If division (C)(7xa) of this section applies regarding an action, the cause of action accrues upon the date on which the claimant is informed by competent medical authority that the bodily injury was related to the exposure to the product, or upon the date on which by the exercise of reasonable diligence the claimant should have known that the bod- ily injury was related to the exposure to the product, whichever date occurs first. The action based on the product liabil- ity claim shall be commenced within two years after the cause of action accraes and shall not be commenced more than two years after the cause of action accrues. (D) This section does not create a new cause of action or substantive legal right against any person involving a product liability claim. (E) As used in this section: (1) "Agent orange," "causative agent," and "veteran" have the same meanings as in section 5903.21 of the Re- vised Code. (2) "Ethical drug," "ethical medical device," "manufacturer," "product," "product liability claim," and "supplier" have the same meanings as in section 2307.71 of the Revised Code. (3) "Harm" means injury, death, or loss to person or property. (F) This section shall be considered to be purely remedial in operation and shall be applied in a remedial manner in any civil action commenced on or after the effective date of this amendment, in which this section is relevant, regardless Page 3 ORC Ann. 2305.10 of when the cause of action accrued and notwithstanding any other section of the Revised Code or prior rule of law of this state, but shall not be construed to apply to any civil action pending prior to the effective date of this amendment.
HISTORY: GC § 11224-1; 112 v 237; Bureau of Code Revision, 10-1-53; 138 v H 716 (Eff 6-12-80); 139 v S 406 (Eff 8-26-82); 140 vH 72 (Eff 5-31-84); 146 v H 350 (Eff 1-27-97); 149 v S 108, § 2.01. Eff 7-6-2001; 150 v S 80, § 1, eff. 4-7-05. EXHIBIT 11 Page 1
LEXSTAT ORC ANN. 2305.10
PAGE'S OHIO REVISED CODE ANNOTATED Copyright (c) 2006 by Matthew Bender & Company, Inc a member of the LexisNexis Group All rights reserved.
* CURRENT THROUGH LEGISLATION PASSED BY THE 126TH OHIO GENERAL ASSEMBLY * * AND FILED WITH THE SECRETARY OF STATE THROUGH JANUARY 2, 2007 * * AND SB 260 (FILE 172), AND SB 171 (FILE 182), FILED 1/3/07; SB 281 (FILE 189), FILED 1/4/07, AND HB 251 (FILE 190), FILED 1/5/07 * * ANNOTATIONS CURRENT THROUGH OCTOBER 1, 2006 * * OPINIONS OF ATTORNEY GENERAL CURRENT THROUGH JANUARY 23, 2007 *
TITLE 23. COURTS -- COMMON PLEAS CHAPTER 2305. JURISDICTION; LIMITATION OF ACTIONS TORTS
GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
ORC Ann. 2305.10 (2006)
§ 2305.10. Product liability claims and actions for bodily injury or injuring personal property; childhood sexual abuse
(A) Except as provided in division (C) or (E) of this section, an action based on a product liability claim and an action for bodily injury or injuring personal property shall be brought within two years after the cause of action accrues. Ex- cept as provided in divisions (B)(1), (2), (3), (4), and (5) of this section, a cause of action accrues under this division when the injury or loss to person or property occurs. (B) (1) For purposes of division (A) of this section, a cause of action for bodily injury that is not described in divi- sion (B)(2), (3), (4), or (5) of this section and that is caused by exposure to hazardous or toxic chemicals, ethical drugs, or ethical medical devices accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiffbas an injury that is related to the exposure, or upon the date on which by the exercise of reasonable dili- gence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, whicbever date oc- curs first. (2) For purposes of division (A) of this section, a cause of action for bodily injury caused by exposure to chro- mium in any of its chemical forms accrues upon the date on which the plaintiff is informed by competent medical au- thority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of rea- sonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, which- ever date occurs first (3) For purposes of division (A) of this section, a cause of action for bodily injury incurred by a veteran through exposure to chemical defoliants or herbicides or other causative agents, including agent orange, accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable dillgence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, whichever date occurs first. (4) For purposes of division (A) of this section, a cause of action for bodily injury caused by exposure to diethyl- stilbestrol or other nonsteroidal synthetic estrogens, including exposure before birth, accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable diligence the plaintiff should have known that the plaintiffhas an injury that is related to the exposure, whichever date occurs first. Page 2 ORC Ann. 2305.10
(5) For purposes of division (A) of this section, a cause of action for bodily injury caused by exposure to asbestos accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, whichever date occurs first. (C) (1) Except as otherwise provided in divisions (C)(2), (3), (4), (5), (6), and (7) of this section or in section 2305.19 of the Revised Code, no cause of action based on a product liability claim sball accrue against the manufacturer or supplier of a product later than ten years from the date that the product was deHvered to its first purchaser or first lessee who was not engaged in a business in which the product was used as a component in the production, construc- tion, creation, assembly, pr rebuilding of another product. (2) Division (C)(1) of this section does not apply if the manufacturer or supplier of a product engaged in fraud in regard to information about the producYand the fraud contributed to the harm that is alleged in a product liability claim involving that product. (3) Division (C)(1) of this section does not bar an action based on a product liability claim against a manufacturer or supplier of a product who made an express, written warranty as to the safety of the product that was for a period longer than ten years and that, at the time of the accrual of the cause of action, has not expired in accordance with the terms of that warranty. (4) If the cause of action relative to a product liability claim accrues during the ten-year period described in divi- sion (C)(1) of this section but less than two years prior to the expiration of that period, an action based. on the product liability claim may be commenced within two years after the cause of action accrues. (5) If a cause of action relative to a product liability claim accrues during the ten-year period described in division (C)(1) of this section and the claimant cannot commence an action during that period due to a disability described in section 2305.16 of the Revised Code, an action based on the product liability claim may be commenced within two years after the disability is removed. (6) Division (C)(1) of this section does not bar an action for bodily injury caused by exposure to asbestos if the cause of action that is the basis of the action accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exer- cise of reasonable diligence the plaintiff should have lmown that the plaintiff has an injury that is related to the expo- sure, whicbever date occurs first. (7) (a) Division (C)(1) of this section does not bar an action based on a product liability claim against a manufac- turer or supplier of a product if all of the following apply: (i) The action is for bodily injury. (ii) The product involved is a substance or device described in division (B)(1), (2), (3), or (4) of this section. (iii) The bodily injury results from exposure to the product during the ten-year period described in division (C)(1) of this section. (b) If division (C)(7)(a) of this section applies regarding an action, the cause of action accrues upon the date on which the claimant is informed by competent medical authority that the bodily injury was related to the exposure to the product, or upon the date on which by the exercise of reasonable diligence the claimant should have known that the bod- ily injury was related to the exposure to the product, whichever date occurs first. The action based on the product liabil- ity claim shall be conunenced within two years after the cause of action accrues and shall not be commenced more than two years after the cause of action accrues. (D) This section does not create a new cause of action or substantive legal right against any person involving a product liability claim. (E) An action brought by a victim of childhood sexual abuse asserting any claim resulting from childhood sexual abuse, as defined in section 2305.111 [2305.11.1) of the Revised Code, shall be brought as provided in division (C) of that section. (F) As used in this section: Page 3 ORC Ann. 2305.10
(1) "Agent orange," "causative agent," and "veteran" have the same meanings as in section 5903.21 of the Re- vised Code. (2) "Ethical drug," "ethical medical device," "manufacturer," "product," "product liability claim," and "supplier" have the same meanings as in section 2307.71 of the Revised Code. (3) "Harm" means injury, death, or loss to person or property. (G) This section shall be considered to be purely remedial in operation and shall be applied in a remedial manner in any civil action commenced on or after Apri17, 2005, in which this section is relevant, regardless of when the cause of action accrued and notwithstanding any other section of the Revised Code or prior rule of law of this state, but shall not be construed to apply to any civil action pending prior Apri17, 2005.
HISTORY: GC § 11224-1; 112 v 237; Bureau of Code Revision, 10-1-53; 138 v H 716 (Eff 6-12-80); 139 v S 406 (Eff 8-26- 82); 140 v H 72 (Eff 5-31-84); 146 v H 350 (Eff 1-27-97); 149 v S 108, § 2.01. Eff 7-6-2001; 150 v S 80, § 1, eff. 4-7- 05; 151 v S 17, § 1, eff. 8-3-06. IN THE SUPREME COURT OF OHIO
DOUGLAS GROCH et al, On Questions Certified by the United States Petitioners, * District Court for the Northern District of v. Ohio, Western Division GENERAL MOTORS * CORPORATION, et al Case No. 2006-1914
Respondents U.S. District Court Case No. 3:06-CV-1604 *
MERIT BRIEF OF PETITIONER, DOUGLAS GROCH, VOLUME TWO
Kevin J. Boissoneault # 0040180 * Robert H. Eddy # 0030739 Counsel ofRecord Counsel ofRecord Theodore A. Bowman #0009159 * GALLAGHER SHARP Russell Gerney # 0080186 420 Madison Avenue,-Suite 50 Bonnie E. Haims # 0072465 * Toledo, Oh 43604 GALLON, TAKACS, BOISSONEAULT (419) 241-4860 & SCHAFFER Co. L.P.A. * (419) 241-4866 - fax 3516 Granite Circle Counselfor Respondents, Kard Corporation Toledo, OH 43617-1172 * and Racine Federated, Inc. (419) 843-2001 (419) 843-6665 - fax * Stephen Paul Carney # 0063460 Counsel for Petitioner State Solicitor Douglas Groch * Counsel of Record Elise W. Porter # 0055548 * Assistant Solicitor 30 East Broad Street, 170 Floor * Columbus, OH 43215 Counsel for Respondent, State of Ohio * Kimberly A. Conklin # 0074726 * Counsel of Record KERGER & ASSOCIATES * 33 S. Michigan Street, Suite 100 Toledo, OH 43604 * (419) 255-5990 (419) 255-5997 * Counsel for Respondent, General Motors Corporation * David C. Vogel (MO # 45937) Patrick Fanning (MO # 47615) LATHROP & GAGE L.C. 2345 Grand Boulevard, Suite 2800 Kansas City, Missouri 64108-2612 (816) 292-2000 (816) 292-2001 - fax
of Counsel for Respondent, General Motors Corporation
11 TABLE OF CONTENTS
TABLE OF CONTENTS ...... p. iii.
TABLE OF p. vi. AUTHORITIES ...... p..l. STATEMENT OF THE CASE ...... p. l. STATEMENT OF FACTS ...... p. 2.
Proposition of Law No.1 The statute of repose codified in R.C. 2305.10 denies injured Ohioans open access to the courts and the right to remedy for their injuries in violation of Section 16, Article I of the Ohio Constitution. p. 9.
Proposition of Law No. 2 The statute of repose codified in R.C. 2305.10 denies injured Ohioans due process of law contrary to the mandate of Section 16, Article I of the Ohio Constitution. p. 16.
Proposition of Law No. 3 The statute of repose codified in R.C. 2305.10 is an unconstitutional taking of private property under Section 19, Article I of the Ohio Constitution. p. 19.
Proposition of Law. No. 4 The statute of repose codified in R.C. 2305.10 denies equal protection under the law certain plaintiffs contrary to the mandate of Section 2, Article I of the Ohio Constitution. p. 22.
Proposition of Law No. 5 R.C. 2305.10, as applied herein, retroactively extinguishes a substantive right in violation of Section 28, Article II of the Ohio Constitution. p. 27.
Proposition of Law No. 6 SB 80 violates Section 15, Article II of the Ohio Constitution which mandates that no bill shall have more than one subject and that bills with more than one subject must be invalidated in toto. p. 36.
Proposition of Law No. 7 The Workers' Compensation subrogation statutes violate
iii Section 16, Article I of the Ohio Constitution by denying injured workers who settle their third-party tort claims due process of law as a result of failing to provide a proceeding by which those injured workers who settle their third-party claims may overcome the statutory presumption of double recovery. p. 42.
Proposition of Law No. 8 The Workers' Compensation subrogation statutes violate Section 19, Article I of the Ohio Constitution by improperly taking private property where injured workers are compelled to disgorge money obtained as a result of settling a third-party tort claim based upon the statutes' de facto irrebuttable presumption of double recovery. p. 44.
Proposition of Law No. 9 The Workers' Compensation subrogation statutes violate Section 2, Article I of the Ohio Constitution in that in an action between the statutory subrogee and the claimant the party asserting the claim, the statutory subrogee, (i.e. the plaintiff in that action) is given a statutory presumption of recovery versus the defendant in that action. p. 46.
CONCLUSION ......
CERTIFICATE OF SERVICE ......
APPENDICES Order of the United States District Court for the Northern District 1. of Ohio Western Division Certifying Questions to the Supreme Court of Ohio filed October 11, 2006
Order of the United States District Court for the Northem District 2. of Ohio Western Division Certifying Questions to the Supreme Court of Ohio filed November 27, 2006
Order of the Supreme Court of Ohio filed December 27, 2006 3.
Petitioner's Complaint filed in the Lucas County Court of Common 4. Pleas June 2, 2006
Section 2, Article I of the Ohio Constitution 5.
Section 16, Article I of the Ohio Constitution 6.
Section 19, Article I of the Ohio Constitution 7.
iv Section 15, Article II of the Ohio Constitution 8.
Section 28, Article II of the Ohio Constitution 9.
R.C. 2305.10 (2005) 10.
R.C.2305.10 11.
START OF VOLUME TWO
Senate Bi1180 12.
Legislative Service Commission, SB 80, Final Analysis 13.
R.C. 4123.93 14.
R.C. 4123.931 15.
Letter of Bennet M. Miller dated February 13, 2007 16.
v EXHIBIT 12 Page 1
LEXSEE 2003 OHIO SB 80
OHIO ADVANCE LEGISLATIVE SERVICE
STATENET ST^^ EN1%T_^,
Copyright © 2005 by Information for Public Affairs, Inc.
OHIO 125TH GENERAL'ASSEMBLY -- 2003-04 REGULAR SESSION
SENATE BILL NO. 80
2003 Ohio SB 80
BILL TRACKING SUMMARY FOR THIS DOCUMENT
SYNOPSIS: AN ACT To amend sections 1533.18, 1701.76, 1701.82, 1775.14, 2117.06, 2125.02, 2125.04, 2305.01, 2305.03, 2305.10, 2305.113, 2305.234, 2305.25, 2307.011, 2307.23, 2307.29, 2307.60, 2307.71, 2307.75, 2307.80, 2315.01, 2315.21, 2315.32, 2315.33, 2315.34, 2315.36, 2323.51, 2505.02, 3719.81, 4507.07 4513.263, 4713.02, 4715.42, 4723.01, 4723.03, 4723.28, 4723.43, 4723.44, 4723.48, 4723.482, 4729.01, and 4731.22; to enact sections 901.52, 1519.07, 2305.131, 2305.36, 2307.711, 2307.97, 2315.18, 2315.19, 2315.20, and 2323.44; and to repeal sec- tions 2315.41, 2315.42, 2315.43, 2315.44, 2315.45, and 2315.46 of the Revised Code to make changes related to the award of certain damages, collateral benefits evidence, and contributory fault in tort actions; to establish a statute of repose for certain product liability claims and claims based on unsafe conditions of real property improvements and to make other changes related to product liability claims; to provide that the product liability statutes are intended to abro- gate common law product liability causes of action; to enact a conflicts of law provision for statutes of limitation in civil actions; to modify the provisions on frivolous conduct in filing civil actions; to make other changes related to civil ac- tions; to provide qualified immunity from civil damages for food manufacturers, sellers, and trade associations for claims resulting from a person's cumulative consumption, obesity, or weight gain or any health condition related to cu- mulative consumption, obesity, or weight gain; to probibit imputing any assurances or assumption of liability regarding public access to premises used for growing agricultural produce; to preclude assumption of liability regarding the use of recreational trails; to. modify the civil immunity for health care professionals and health care workers; to specify the nurses who may refer to themselves as advanced practice nurses; to eliminate obsolete references to pilot programs for advanced practice nurses; to establish limitations on successor asbestos-related liabilities relating to corporations; and to require the State Dental Board to issue volunteer certificates to retired dental practitioners upon submission of a com- plete application.
NOTICE: [A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED ------To view the next section, type np* TRANSMIT. To view a specific section, transmit p* and the section number. e.g. p*1 ------ BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: [* 1] Section 1. That sections 1533.18, 7701.76, 1701.82, 1775.14, 2117.06, 2125.02, 2125.04, 2305.01, 2305.03, 2305.10, 2305.113, 2305.234, 2305.25, 2307.011, 2307.23, 2307.29, 2307.60, 2307.71, 2307.75, 2307.80, 2315.01, 2315.21, 2315.32, 2315.33, 2315.34, 2315.36, 2323.51, 2505.02, 3719.81, 4507.07, 4513.263, 4713.02, 4715.42, 4723.01, 4723.03, 4723.28, 4723.43, 4723.44, 4723.48, 4723.482, 4729.01, and 4731.22 be amended and sections Page 2 2003 Ohio SB 80, * 901.52, 1519.07, 2305.131, 2305.36, 2307.711, 2307.97, 2315.18, 2315.19, 2315.20, and 2323.44 of the Revised Code be enacted to read as follows: [A> SEC. 901.52. (A) AS USED IN THIS SECTION, "TORT ACTION" HAS THE SAME MEANING AS IN SECTION 2305.35 OF THE REVISED CODE. Sec. 1701.76. (A)(1) Provided the provisions of Chapter 1704. of the Revised Code do not prevent the transaction from being effected, a lease, sale, exchange, transfer, or other disposition of all, or substantially all, of the assets, with or without the good will, of a corporation, if not made in the usual and regular course of its business, may be made upon [D> such tive officers, directors, general partners, or other authorized representatives is continued notwithstanding the merger or consolidation. (2) In the case of a consolidation, the new entity exists when the consolidation becomes effective and, if it is a do- mestic corporation, the articles contained in or provided for in the agreement of consolidation shall be its original arti- cles. In the case of a merger in which the surviving entity is a domestic corporation, the articles of the domestic surviv- ing corporation in effect immediately prior to the time the merger becomes effective shall continue as its articles after the merger except as otherwise provided in the ageement of merger. (3) The surviving or new entity possesses all assets and property of every description, and every interest in the as- sets and property, wherever located, and the rights, privileges, immunities, powers, franchises, and authority, of a public as well as of a private nature, of each constituent entity, and [A>, SUBJECT TO THE LIMITATIONS SPECIFIED IN SECTION 2307.97 OF THE REVISED CODE, (1) Jointly and severally for everything chargeable to the partnership under sections 1775.12 and 1775.13 of the Revised Code. This joint and several liability is not subject to section 2307.22 [D> , (b)(i) In determining the amount of damages to be awarded, the jury or court may consider all factors existing at the time of the decedent's death that are relevant to a determination of the damages suffered by reason of the wrongful death. (ii) Consistent with the Rules of Evidence, [D> any THAT PERIOD, A CIVIL ACTION FOR WRONGFUL DEATH INVOLVING A PRODUCT LIABILITY CLAIM MAY BE COMMENCED WITHIN TWO YEARS AFTER THE DECEDENT'S DEATH. commencement of [D> such MEDICAL DEVICES ACCRUES UPON THE DATE ON WHICH THE PLAINTIFF IS INFORMED BY COMPETENT MEDICAL AUTHORITY THAT THE PLAINTIFF HAS AN INJURY THAT IS RELATED TO THE EXPOSURE, OR UPON THE DATE ON WHICH BY THE EXERCISE OF REASONABLE DILIGENCE THE PLAINTIFF SHOULD HAVE KNOWN THAT THE PLAINTIFF HAS AN INJURY THAT IS RELATED TO THE EXPOSURE, WHICHEVER DATE OCCURS FIRST [A> (4) IF THE CAUSE OF ACTION RELATIVE TO A PRODUCT LIABILITY CLAIM ACCRUES DURING THE TEN-YEAR PERIOD DESCRIBED IN DIVISION (C)(1) OF THIS SECTION BUT LESS THAN TWO YEARS PRIOR TO THE EXPIRATION OF THAT PERIOD, AN ACTION BASED ON THE PRODUCT LIABILITY CLAIM MAY BE COMMENCED WITHIN TWO YEARS AFTER THE CAUSE OF ACTION ACCRUES. Sec. 2305.113. (A) Except as otherwise provided in this section, an action upon a medical, dental, optometric, or chiropractic claim shall be commenced within one year after the cause of action accrued. (B)(1) If prior to the expiration of the one-year period specified in division (A) of this section, a claimant who al- legedly possesses a medical, dental, optometric, or chiropractic claim gives to the person who is the subject of that claim written notice that the claimant is considering bringing an action upon that claim, that action may be commenced against the person notified at any time within one hundred eighty days after the notice is so given. (2) An insurance company shall not consider the existence or nonexistence of a written notice described in division (B)(1) of this section in setting the liability insurance premium rates that the company may charge the company's in- sured person who is notified by that written notice. (C) Except as to persons within the age of minority or of unsound mind as provided by section 2305.16 of the Re- vised Code, and except as provided in division (D) of this section, both of the following apply: (1) No action upon a medical, dental, optometric, or chiropractic claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiroprac- tic claim. (2) If an action upon a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim, then, any action upon that claim is barred. (D)(1) If a person making a medical claim, dental claim, optometric claim, or chiropractic claim, in the exercise of reasonable care and diligence, could not have discovered the injury resulting from the act or otnission constituting the alleged basis of the claim within three years after the occurrence of the act or omission, but, in the exercise of reason- able care and diligence, discovers the injury resulting from that act or omission before the expiration of the four-year period specified in division (C)(1) of this section, the person may commence an action upon the claim not later than one year after the person discovers the injury resulting from that act or omission. (2) If the alleged basis of a medical claim, dental claim, optometric claim, or chiropractic claim is the occurrence of an act or omission that involves a foreign object that is left in the body of the person making the claim, the person may commence an action upon the claim not later than one year after the person discovered the foreign object or not later than one year after the person, with reasonable care and diligence, should have discovered the foreign object. (3) A person who commences an action upon a medical claim, dental claim, optometric claim, or chiropractic claim under the circumstances described in division (D)(l ) or (2) of this section has the affirmative burden of proving, by clear and convincing evidence, that the person, with reasonable care and diligence, could not have discovered the injury resulting from the act or omission constituting the alleged basis of the claim within the three-year period described in division (D)(1) of this section or within the one-year period described in division (D)(2) of this section, whichever is applicable. (E) As used in this section: (1) "Hospital" includes any person, corporation, association, board, or authority that is responsible for the operation of any hospital licensed or registered in the state, including, but not limited to, those that are owned or operated by the state, political subdivisions, any person, any corporation, or any combination of the state, political subdivisions, per- sons, and corporations. "Hospital" also includes any person, corporation, association, board, entity, or authority that is responsible for the operation of any clinic that employs a full-time staff of physicians practicing in more than one rec- ognized medical specialty and rendering advice, diagnosis, care, and treatment to individuals. "Hospital" does not in- clude any hospital operated by the government of the United States or any of its branches. (2) "Physician" means a person who is licensed to practice medicine and surgery or osteopathic medicine and sur- gery by the state medical board or a person who otherwise is authorized to practice medicine and surgery or osteopathic medicine and surgery in this state. (3) "Medical claim" means any claim that is asserted in any civil action against a physician, podiatrist, hospital, home, or residential facility, against any employee or agent of a physician, podiatrist, hospital, home, or residential fa- cility, or against a licensed practical nurse, registered nurse, advanced practice nurse, physical therapist, physician assis- tant, emergency medical technician-basic, emergency medical technician-intermediate, or emergency medical techni- Page 14 2003 Ohio SB 80, * cian-paramedic, and that arises out of the tnedical diagnosis, care, or treatment of any person. "Medical claim" includes the following: (a) Derivative claims for relief that arise from the medical diagnosis, care, or treatment of a person; (b) Claims that arise out of the medical diagnosis, care, or treatment of any person and to which either of the fol- towing applies: (i) The claim results from acts or omissions in providing medical care. (ii) The claim results from the hiring, training, supervision, retention, or termination of caregivers providing medi- cal diagnosis, care, or treatment. (c) Claims that arise out of the medical diagnosis, care, or treatment of any person and that are brought under sec- tion 3721.17 of the Revised Code. (4) "Podiatrist" means any person who is licensed to practice podiatric medicine and surgery by the state medical board. (5) "Dentist" means any person who is licensed to practice dentistry by the state dental board. (6) "Dental claim" means any claim that is asserted in any civil action against a dentist, or against any employee or agent of a dentist, and that arises out of a dental operation or the dental diagnosis, care, or treatment of any person. "Dental claim" includes derivative claims for relief that arise from a dental operation or the dental diagnosis, care, or treatment of a person. (7) "Derivative claims for relief' include, but are not limited to, claims of a parent, guardian, custodian, or spouse of an individual who was the subject of any medical diagnosis, care, or treatment, dental diagnosis, care, or treatment, dental operation, optometric diagnosis, care, or treatment, or chiropractic diagnosis, care, or treatment, that arise from that diagnosis, care, treatment, or operation, and that seek the recovery of damages for any of the following: (a) Loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, or any other intangible loss that was sustained by the parent, guardian, custodian, or spouse; (b) Expenditures of the parent, guardian, custodian, or spouse for medical, dental, optometric, or chiropractic care or treatment, for rehabilitation services, or for other care, treatment, services, products, or accommodations provided to the individual who was the subject of the medical diagnosis, care, or treatment, the dental diagnosis, care, or treatment, the dental operation, the optometric diagnosis, care, or treatment, or the chiropractic diagnosis, care, or treatanent. (8) "Registered nurse" means any person who is licensed to practice nursing as a registered nurse by the [D> state (16) "Advanced practice nurse" means any certified nurse practitioner, clinical nurse specialist, [D> or OR OTHER INFORMATION TI-IAT PERTAINS TO THE ACT OR OMISSION CONSTITUTING THE ALLEGED BASIS OF THE BODILY INJURY, INJURY TO REAL OR PERSONAL PROPERTY, OR WRONGFUL DEATH OR TO THE DEFECTIVE AND UNSAFE CONDITION OF THE IMPROVEMENT TO REAL PROPERTY. (h) Podiatrists authorized under Chapter 4731. of the Revised Code to practice podiatry; (i) Dietitians licensed under Chapter 4759. of the Revised Code; (j) Pharmacists licensed under Chapter 4729. of the Revised Code; (k) Emergency medical technicians-basic, emergency medical technicians-intermediate, and emergency medical technicians-paramedic, certified under Chapter 4765. of the Revised Code; (1) Respiratory care professionals licensed under Chapter 4761. of the Revised Code; (m) Speech-language pathologists and audiologists licensed under Chapter 4753. of the Revised Code. (6) "Health care worker" means a person other than a health care professional who provides medical, dental, or other health-related care or treatment under the direction of a health care professional with the authority to direct that individual's activities, including medical technicians, medical assistants, dental assistants, orderlies, aides, and individu- als acting in similar capacities. (7) "Indigent and uninsured person" means a person who meets all of the following requirements: (a) The person's income is not greater than two hundred per cent of the current poverty line as defmed by the United States office of management and budget and revised in accordance with section 673(2) of the "Omnibus Budget Reconciliation Act of 1981," 95 Stat. 511, 42 U.S.C. 9902, as amended. (b) The person is not eligible to receive medical assistance under Chapter 5111., disability medical assistance under Chapter 5115. of the Revised Code, or assistance under any other governmental health care program. (c) Either of the following applies: (i) The person is not a policyholder, certificate holder, insured, contract holder, subscriber, enrollee, member, bene- ficiary, or other covered individual under a health insurance or health care policy, contract, or plan. (ii) The person is a policyholder, certificate holder, insured, contract holder, subscriber, enrollee, member, benefici- ary, or other covered individual under a health insurance or health care policy, contract, or plan, but the insurer, policy, contract, or plan denies coverage or is the subject of insolvency or bankruptcy proceedings in any jurisdiction. (8). "Nonprofit health care referral organization" means an entity that is not operated for profit and refers patients to, or arranges for the provision of, health-related diagnosis, care, or treatment by a health care professional or health care worker. (9) "Operation" means any procedure that involves cutting or otherwise infiltrating human tissue by mechanical means, including surgery, laser surgery, ionizing radiation, therapeutic ultrasound, or the removal of intraocular foreign bodies. "Operation" does not include the administration of medication by injection, unless the injection is administered in conjunction with a procedure infiltrating human tissue by mechanical means other than the administration of medi- cine by injection. "Operation" does not include routine dental restorative procedures, the scaling of teeth, or extractions of teeth that are not impacted. (10) "Tort action" means a civil action for damages for injury, death, or loss to person or property other than a civil action for damages for a breach of contract or another agreement between persons or government entities. (11) "Volunteer" means an individual who provides any medical, dental, or other health-care related diagnosis, care, or treatment without the expectation of receiving and without receipt of any compensation or other form of remu- neration from an indigent and uninsured person, another person on behalf of an indigent and uninsured person, any health care facility or location, any nonprofit health care referral organization, or any other person or govemment entity. (12) "Community control sanction" has the same meaning as in section 2929.01 of the Revised Code. [A> (13) "DEEP SEDATION" MEANS A DRUG-INDUCED DEPRESSION OF CONSCIOUSNESS DURING WHICH A PATIENT CANNOT BE EASILY AROUSED BUT RESPONDS PURPOSEFULLY FOLLOWING REPEATED OR PAINFUL STIMULATION, A PATIENT'S ABILITY TO INDEPENDENTLY MAINTAIN VENTILATORY FUNCTION MAY BE INPAIRED, A PATIENT MAY REQUIRE ASSISTANCE IN MAINTAINING A PATENT AIRWAY AND SPONTANEOUS VENTILATION MAY BE INADEQUATE, AND CARDIOVASCULAR FUNCTION IS USUALLY MAINTAINED. [A> (14) "GENERAL ANESTHESIA" MEANS A DRUG-INDUCED LOSS OF CONSCIOUSNESS DURING WHICH A PATIENT IS NOT AROUSABLE, EVEN BY PAINFUL STIMULATION, THE ABILITY TO INDEPENDENTLY MAINTAIN VENTILATORY FUNCTION IS OFTEN IMPAIRED, A PATIENT OFTEN REQUIRES ASSISTANCE IN MAINTAINING A PATENT AIRWAY, POSITIVE PRESSURE VENTILATION MAY BE REQUIRED BECAUSE OF DEPRESSED SPONTANEOUS VENTILATION OR DRUG-INDUCED DEPRESSION OF NEUROMUSCULAR FUNCTION, AND CARDIOVASCULAR FUNCTION MAY BE IMPAIRED. (B) "Health insuring corporation" means an entity that holds a certificate of authority under Chapter 1751. of the Revised Code. "Health insuring corporation" includes wholly owned subsidiaries of a health insuring corporation. (C) "Hospital" means either of the following: (1) An institution that has been registered or licensed by the deparhnent of health as a hospital; (2) An entity, other than an insurance company authorized to do business in this state, that owns, controls, or is af- filiated with an institution that has been registered or licensed by the department of health as a hospital. (D) "Incident report or risk management report" means a report of an incident involving injury or potential injury to a patient as a result of patient care provided by health care providers, including both individuals who provide health care and entities that provide health care, that is prepared by or for the use of a peer review committee of a health care entity and is within the scope of the functions of that committee. (E)(1) "Peer review committee" means a utilization review committee, quality assessment committee, performance improvement committee, tissue committee, credentialing committee, or other committee that does either of the follow- ing: (a) Conducts professional credentialing or quality review activities involving the competence of, professional con- duct of, or quality of care provided by health care providers, including both individuals who provide health care and entities that provide health care; (b) Conducts any other attendant hearing process initiated as a result of a peer review committee's recommenda- tions or actions. - (2) "Peer review committee" includes all of the following: (a) A peer review committee of a hospital or long-term care facility or a peer review committee of a nonprofit health care corporation that is a member of the hospital or long-term care facility or of which the hospital or facility is a member; (b) A peer review committee of a community mental health center; (c) A board or committee of a hospital, a long-term care facility, or other health care entity when reviewing profes- sional qualifications or activities of health care providers, including both individuals who provide health care and enti- ties that provide health care; (d) A peer review comtnittee, professional standards review committee, or arbitration committee of a state or local society composed of inetnbers who are in active practice as physicians, dentists, optometrists, psychologists, or phanna- cists; (e) A peer review committee of a health insuring corporation that has at least a two-thirds majority of member phy- sicians in active practice and that conducts professional credentialing and quality review activities involving the compe- tence or professional conduct of health care providers that adversely affects or could adversely affect the health or wel- fare of any patient; (f) A peer review committee of a health insuring corporation that has at least a two-thirds majority of member phy- sicians in active practice and that conducts professional credentialing and quality review activities involving the compe- tence or professional conduct of a health care facility that has contracted with the health insuring corporation to provide health care services to enrollees, which conduct adversely affects, or could adversely affect, the health or welfare of any patient; (g) A peer review convnittee of a sickness and accident insurer that has at least a two-thirds majority of physicians in active practice and that conducts professional credentialing and quality review activities involving the competence or professional conduct of health care providers that adversely affects or could adversely affect the health or welfare of any patient; (h) A peer review committee of a sickness and accident insurer that has at least a two-thirds majority of physicians in active practice and that conducts professional credentialing and quality review activities involving the competence or professional conduct of a health care facility that has contracted with the insurer to provide health care services to insur- eds, which conduct adversely affects, or could adversely affect, the health or welfare of any patient; Page 21 2003 Ohio SB 80, * (i) A peer review committee of any insurer authorized under Title XXXIX of the Revised Code to do the business of medical professional liability insurance in this state that conducts professional quality review activities involving the competence or professional conduct of health care providers that adversely affects or could affect the health or welfare of any patient; (j) A peer review committee of the bureau of workers' compensation responsible for reviewing the professional qualifications and the performance of providers conducting medical examinations or file reviews for the bureau; (k) Any other peer review committee of a health care entity. (F) "Physician" means an individual authorized to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery. (G) "Sickness and accident insurer" means an entity authorized under Title XXXIX of the Revised Code to do the business of sickness and accident insurance in this state. (I-I) "Tort action" means a civil action for damages for injury, death, or loss to a patient of a health care entity. "Tort action" includes a product liability claim [A>, AS DEFINED IN SECTION 2307.71 OF THE REVISED CODE, AND AN ASBESTOS CLAIM, AS DEFINED IN SECTION 2307.91 OF THE REVISED CODE,