Liability

Joint and Several

Economic Damages

Limited*

Joint liability is abolished for economic damages for defendants less than 50% at fault.  Joint liability applies for defendants who are less than 50% at fault if they acted intentionally.

Ohio Rev. Code Ann. § 2307.22(A), (B).

Non-Economic Damages

Abolished

Ohio Rev. Code Ann. § 2307.22(C).

May a Jury Allocate Fault Among All Persons Contributing to an Injury?

Yes

Ohio Rev. Code § 2307.23.

Market Share Liability

No

Sutowski v. Eli Lilly & Co., 696 N.E.2d 187 (Ohio 1998).

Defenses

Comparative Negligence

Yes, modified

Contributory fault does not bar a plaintiff from recovering damages that have directly and proximately resulted from the tortious conduct of one or more other persons, if the contributory fault of the plaintiff was not greater than the combined tortious conduct of all other persons from whom the plaintiff seeks recovery and of all other persons from whom the plaintiff does not seek recovery. The plaintiff's recovery is reduced  by an amount that is proportionately equal to the percentage of his or her tortious conduct.

Ohio Rev. Code Ann. § 2315.33.

Assumption of Risk

No, except in product liability cases

Assumption of risk is generally available as a complete defense in product liability actions.

Ohio Rev. Code Ann. § 2307.711.

In other cases, assumption of risk is subsumed by comparative negligence. 

See Cremeans v. Willmar Henderson Mfg. Co., 566 N.E.2d 1203 (Ohio 1991); DeAmiches v. Popczun, 299 N.E.2d 265 (Ohio 1973); but see Bundschu v. Naffahi, 768 N.E.2d 1215 (Ohio App. Ct. 2002).

Product Misuse

Yes

A manufacturer is not responsible if the product was used in a manner that was not reasonably foreseeable after it left the manufacturer’s control.

Bowling v. Heil Co., 511 N.E.2d 373 (1987); Temple v. Wean United, Inc., 364 N.E.2d 267 (Ohio 1977).

Compliance With Government Standards

Yes, eliminates punitive damages

Punitive damages are not available in product liability claims involving FDA-approved drugs and medical devices if the manufacturer: (a) manufactured and labeled the product in relevant and material respects in accordance with the terms of the approval or license; or (b) marketed an over-the-counter drug pursuant to federal regulations. Does not apply if the claimant establishes, by a preponderance of the evidence, that the manufacturer fraudulently and in violation of applicable FDA regulations withheld from the FDA information known to be material and relevant to the harm that the claimant allegedly suffered or misrepresented to the FDA information of that type.

Ohio Rev. Code Ann. 2307.80(c)(1).

In product liability claims not involving a drug or device, the manufacturer or supplier is not be liable for punitive damages if it fully complied with all applicable government safety and performance standards.  Does not apply if the claimant establishes, by a preponderance of the evidence, that the manufacturer or supplier of the product other than a drug or device fraudulently and in violation of applicable government safety and performance standards, whether or not designated as such by the government, withheld from an applicable government agency information known to be material and relevant to the harm that the claimant allegedly suffered or misrepresented to an applicable government agency information of that type.”  

Ohio Rev. Code Ann. § 2307.80(d)(1).

Statute of Repose

Yes

No cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than 10 years from the date that the product was delivered to its first purchaser. 

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.

Does not bar an action based on express, written warranty as to the safety of the product that was for a period longer than 10 years.

If the cause of accrues during the 10-year period but less than 2 years prior to the expiration of that period, an action based on the product liability claim may be commenced within 2 years after the cause of action accrues.

If a cause of action accrues during the 10-year period and the claimant cannot commence an action during that period due to a disability, an action may be commenced within 2 years after the disability is removed.

The law 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 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. 

Ohio Rev. Code Ann. § 2305.10(C); see also Groch v. General Motors Corp., 883 N.W.2d 377 (Ohio 2008) (declaring statute to be constitutional).

Government Contractor Defense

No

The Ohio Supreme Court rejected the government contractor defense in Jackson v. Alert Fire & Safety Equip., Inc., 567 N.E.2d 1027 (Ohio 1991).

McLawsuits Permitted?  Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition?

No

Ohio Rev. Code Ann. § 2305.36.

Compensatory Damages

Is there a statutory limit on economic damages?

No

“There shall not be any limitation on the amount of compensatory damages that represents the economic loss of the person who is awarded the damages in the tort action.”  

Ohio Rev. Code Ann. § 2315.18(B)(1). 

Is there a statutory limit on non-economic damages?

Yes

Generally, compensatory damages for noneconomic loss may not exceed the greater of $250,000 or an amount that is equal to three times the economic loss, to a maximum of $350,000 for each plaintiff or a maximum of $500,000 for each occurrence that is the basis of that tort action.

The limit does not apply when the injury involves permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system; or permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.  

Ohio Rev. Code Ann. § 2315.18(B)(2), (B)(3); see also Arbino v. Johnson & Johnson, 880 N.E.2d 420 (Ohio 2007) (declaring cap to be constitutional).

Is recovery for medical monitoring permitted without physical injury?

Most likely, as damages

Day v. NLO, 851 F. Supp. 869, 879-81 (S.D. Ohio 1994) (holding medical monitoring is available in Ohio in the absence of present, physical injury); Riston v. Butler, 777 N.E.2d 857, 866-67 (Ohio Ct. App. 2002) (refusing to grant sanctions for bringing medical monitoring claim because at least one unreported Ohio trial court decision, in addition to the federal district court’s decision in Day, predicted Ohio would allow such a claim); cf. Wilson v. Brush Wellman, Inc., 817 N.E.2d 59, 63-65 (Ohio 2004) (refusing to certify a medical monitoring class for lack of cohesiveness while not altogether rejecting the potential for a medical monitoring class).

Punitive Damages 

Is there a statutory limit?

Yes

Punitive damages are limited to two times compensatory damages.

If the defendant is an individual or a small employer, punitive damages are limited to the lesser of two times compensatory damages or 10% of the individual’s or employer’s net worth up to a maximum of $350,000.

The limit on punitive damages does not apply where the defendant acted purposely and knowingly, or when the defendant has been convicted of or pleaded guilty to a criminal offense that is a felony and had as an element of the offense one or more of the culpable mental states of purposely and knowingly, and that is the basis of the tort action.

Ohio Rev. Code Ann. § 2315.21(D); see also Arbino v. Johnson & Johnson, 880 N.E.2d 420 (Ohio 2007) (declaring cap to be constitutional)

Is there any restriction on imposing multiple punitive damage awards for same conduct?

Yes

Punitive damages may not be awarded if punitive damages  have previously been awarded and collected for the same act or course of conduct that is alleged and the aggregate of those damages exceeds the punitive damages cap, unless the court, by clear and convincing evidence, determines: (1) the plaintiff will offer new and substantial evidence of previously undiscovered, additional behavior of the defendant other than the injury or loss for which compensatory damages are sought; or (2) the total amount of prior punitive or exemplary damages awards was insufficient to punish the defendant and to deter the defendant and others from similar behavior in the future.

Ohio Rev. Code Ann. § 2315.21(D).

Does the state receive a portion of the punitive damage award?

Yes

The Ohio Supreme Court ruled that it will decide on a case-by-case basis whether to order a portion of any punitive damages award to be directed to "a place that will achieve a societal good."  

Dardinger v. Anthem Blue Cross & Blue Shield, 781 N.E.2d 121 (Ohio 2002).

What standard is used?

Clear and convincing evidence

Ohio Rev. Code Ann. § 2315.21(D)(4).

Procedures 

Venue

Conducive to Abuse - 
Does the statute permit forum shopping?

No

Proper venue lies in either: (1) the county in which the defendant resides; the county of the defendant’s principal place of business; where the defendant conducted activity that gave rise to the claim for relief; or (2) if the defendant is a non-resident of the state and is served outside of the state, in the county where plaintiff resides.

If none of the above apply, in the county in which plaintiff resides, has a principal place of business, or regularly and systematically conducts business activity.

If none of the above apply, in a county in which defendant has property or debts owing to the defendant subject to attachment or garnishment; or where the defendant’s an agent for service of process is located.

Ohio R. Civ. P. 3(B).

Class Actions

Is there a right to an immediate appeal of class certification?

Yes

Ohio Rev. Code Ann. § 2505.02(B)(5).

Appeal Bonds

Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal?

No

The appeal bond that may be required in any civil action may not exceed $50 million excluding interests and costs.

Ohio Rev. Code Ann. § 2505.09.

Evidence 

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

Yes

Daubert has been applied in civil cases in Ohio, which rejected the Frye general acceptance test in 1983.

State v. Williams, 446 N.E.2d 444, 446-47 (Ohio 1983).  

The Ohio Supreme Court has stated that the four Daubert factors are not prerequisites for admissibility; they are factors for a court to consider in determining reliability.  

Miller v. Bike Athletic Co., 687 N.E.2d 735, 741 (Ohio 1998).

 Private Lawsuits Under Consumer Protection Statutes

Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue?

Yes, but reliance may be presumed or inferred in certain cases

Compare Marks v. C.P. Chem. Co., 509 N.E.2d 1249 (Ohio 1987) (denying class certification because reliance would have to be shown for each party) with Amato v. General Motors Corp., 463 N.E.2d 625 (Ohio Ct. App. 1982) (allowing presumption of reliance), overruled on other grounds; see also Richards v. Beechmont Volvo, 711 N.E.2d 1088, 1090 (Ohio Ct. App. 1998) (referring to a deceptive act as one that has a "tendency or capacity to deceive").

What is the level of scienter (intent) required of a defendant?

None

Intent is not required unless plaintiff is suing under § 1345.03 (unconscionable acts or practices).

Renner v. Derin Acquisition Corp., 676 N.E.2d 151 (Ohio Ct. App. 1996).

Are class actions permitted?

Class actions are permitted only if certain violations are alleged

Ohio Rev. Code Ann. § 1345.09(B).  Statutory/treble damages are not available in class actions.

Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury?

Yes

Generally, a plaintiff may rescind the transaction or recover actual damages.

Ohio Rev. Code Ann. § 1345.09(A).

Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant? 

Yes, for certain violations

Where the violation was an act or practice declared to be deceptive or unconscionable by rule before the consumer transaction on which the action is based, or an act or practice determined by a court of this state to violate the statute and committed after the decision containing the determination was available for public inspection, the consumer may rescind the transaction or recover the greater of three times actual damages or $200. 

Ohio Rev. Code Ann. § 1345.09(B).

Does every prevailing plaintiff receive attorneys' fees and costs?

No, discretionary

The court may award to the prevailing party a reasonable attorney's fee limited to the work reasonably performed, if: (1) The consumer complaining of the act or practice that violated this chapter has brought or maintained an action that is groundless, and the consumer filed or maintained the action in bad faith; (2) The supplier has knowingly committed an act or practice that violates this chapter.

Ohio Rev. Code Ann. § 1345.09(F).

Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act? 

Yes

“This chapter does not apply to either of the following:  (1) Conduct that is in compliance with the orders or rules of, or a statute administered by, a federal, state, or local governmental agency.”

Ohio Rev. Code Ann. § 4165.04.

The provisions of this Act “do not apply to: (A) An act or practice required or specifically permitted by or under federal law, or by or under other sections of the Revised Code, except as provided in division (B) of section 1345.11 of the Revised Code.”

Ohio Rev. Code Ann. §1345.12.

Ohio law also provides:

“In construing division (A) of this section, the court shall give due consideration and great weight to federal trade commission orders, trade regulation rules and guides, and the federal courts' interpretations of subsection 45(a)(1) of the ‘Federal Trade Commission Act,’ 38 Stat. 717 (1914), 15 U.S. C.A. 41, as amended.”

Ohio Rev. Code Ann. § 1345.02(C).

 Jury Service

Automatic exemptions and disqualifications based on occupation eliminated?

Yes

Are the grounds for obtaining an excuse from service closely defined?

Yes

Grounds include when: 

1) The interests of the public will be materially injured by the juror's attendance.

(2) The juror's spouse or a near relative of the juror or the juror's spouse has recently died or is dangerously ill. 

(3) The juror is a cloistered member of a religious organization. 

(4) The prospective juror has a mental or physical condition that causes the prospective juror to be incapable of performing jury service.

(5) Jury service would otherwise cause undue or extreme physical or financial hardship to the prospective juror or a person under the care or supervision of the prospective juror. This includes when the juror would be required to abandon a person under his or her care or supervision due to the impossibility of obtaining an appropriate substitute caregiver, when jury service would result in undue or extreme physical or financial hardship.

(6) The juror is over 75 years of age, and the juror requests to be excused. 

(7) The prospective juror is an active member of a recognized amish sect and requests to be excused because of the prospective juror's sincere belief that as a result of that membership the prospective juror cannot pass judgment in a judicial matter.

Ohio Rev. Code Ann. § 2313.16.

May jurors automatically postpone and reschedule service?

Yes

Jurors have the right to one automatic postponement with a simple and convenient method of rescheduling jury service to a more convenient time within 6 months.  The request for a postponement must be made within 2 business days of the scheduled initial appearance.

Ohio Rev. Code Ann. § 2313.13(A).

Is a juror's employment and leave time adequately protected during service?

Yes

Employers may not discharge an employee, threaten to discharge an employee, or take any disciplinary action that could lead to the discharge of any permanent employee due to absence from work for jury service.  Employers may not require an employee to use annual, vacation, or sick leave time for the period in which he or she serves.

Ohio Rev. Code Ann. § 2313.18.

Is there a limit on the frequency of jury service?

Yes

No more than once every two years.

Ohio Rev. Code Ann. § 2313.07.

Is the length of service limited to no more than one day or one trial?

No

Jurors may be required to serve up to 2 weeks.

Ohio Rev. Code Ann. § 2313.34(A).

Juror per diem

Varies

In Ohio, most jurors receive only $7.50 to $10 per day from the state for their service.  A 2004 law eliminated the state maximum of $40 per day and permits county commissioners to provide greater compensation if they choose.

Ohio Rev. Code Ann. § 2313.34(B)(1).

Is additional compensation available on lengthy trials?

Slight increase

Jurors who serve longer than ten days are entitled to compensation at 1 ½ times the ordinary daily rate and in no event less than $15 per day.

Ohio Rev. Code Ann. § 2313.34(B)(2).

Is the potential penalty for nonappearance sufficient to encourage participation?

Yes

Failure to appear for jury service is punishable by a fine of not less than $100 or more than $250 and may be punished by contempt of court.  A fine may be reduced for good cause.

Ohio Rev. Code Ann. §§ 2313.29, 2313.99.

Problem Jurisdictions 

 None reported